[2021] KEHC 12962 (KLR)
The court found that, following the Supreme Court's decision in Muruatetu, the mandatory death sentence for robbery with violence is unconstitutional. The petitioner had already served 15 years in prison, demonstrated reform, and the stolen property was recovered. Considering both aggravating and mitigating factors,...
Source-derived case information.
- Citation
- [2021] KEHC 12962 (KLR)
- Parties
- Appellant: Hamisi Idd Mwatabu; Respondent: Director of Public Prosecution
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Petition 210 of 2019
- Procedural Posture
- Constitutional Petition / Resentencing Judgment
- Outcome
- death_sentence_set_aside; petitioner resentenced to period served and released
- Judges
- DO Ogembo
- Legal Topics
- Robbery With Violence, Mandatory Death Sentence, Resentencing, Mitigation of Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Hamisi Idd Mwatabu
Appellant
Director of Public Prosecution
Respondent
Procedural Posture
Constitutional Petition / Resentencing Judgment
Legal Issues
- 1 Whether the mandatory death sentence for robbery with violence is unconstitutional in light of the Supreme Court decision in Francis Karioko Muruatetu & Another v Republic [2017] eKLR.
- 2 Whether the petitioner is entitled to resentencing based on the period already served and mitigating factors.
Ratio Decidendi
The court found that, following the Supreme Court's decision in Muruatetu, the mandatory death sentence for robbery with violence is unconstitutional. The petitioner had already served 15 years in prison, demonstrated reform, and the stolen property was recovered. Considering both aggravating and mitigating factors, the court held that the petitioner had sufficiently atoned for his crime. The death sentence was set aside and substituted with a custodial sentence equivalent to the period already served, resulting in the petitioner's immediate release unless otherwise lawfully held.
Court Disposition
death_sentence_set_aside; petitioner resentenced to period served and released
Orders
- The death sentence imposed on the petitioner is lifted.
- The petitioner is sentenced to a term in prison equivalent to the period already served.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MOMBASA
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO. 210 OF 2019
HAMISI IDD MWATABU........................................................PETITIONER
VERSUS
DIRECTOR OF PUBLIC PROSECUTION.........................RESPONDENT
JUDGMENT ON RESENTENCING
1. The Petitioner herein Hamisi Idd Mwatabu was arraigned before the Kwale Senior Resident Magistrate’s Court in Criminal Case No. 1576 of 2006 on a charge of robbery with violence contrary to Section 297(2) of the Penal Code.
2. The particulars of the offence were that on 21/9/2016 at about 7. 00 p.m. at Mruruni village of Diani Location Kwale District within Coast Province, with others not before court while armed with a dangerous weapon namely a knife robbed Omar Baraza, a mountain bike valued at Kshs. 4,900/= and at or immediately before or immediately after the time of such robbery used actual violence to the said Omar Baraza.
3. The Petitioner entered a plea of ‘not guilty’ and on 19/6/2007 his trial began. On 28/9/2007 the learned trial magistrate found the Petitioner guilty of the said offence, convicted him and sentenced him to death.
4. Being aggrieved by the said conviction and sentence, the Petitioner filed Mombasa High Court Criminal Appeal No. 63 of 2008 which the court dismissed vide its judgment delivered on 13/9/2010.
5. The Petitioner is seeking a re-sentence in the instant petition pursuant to the Supreme Court decision in Francis Karioko Muruatetu & Another v Republic [2017] eKLR where the court decided that the mandatory nature of the death sentence is against the constitution.
6. The circumstances of the crime are that the victim was attacked by a group of eight men and the victim positively identified the Petitioner as one of his attackers. The Petitioner was armed with a dangerous weapon namely a knife when he and the other people attacked the victim. The knife was recovered on the Petitioner when he was arrested. The Petitioner robbed the victim of a mountain bike valued at Kshs. 4,900/= and the mountain bike was recovered in the Petitioner’s house.
7. Ms. Wanjohi, the learned prosecutor submitted that the Petitioner be jailed to 20 years, and cited Nicholas Mukila Ndeti v Republic [2019] eKLR where for the similar offence the appellant was sentenced to 15 years in prison.
8. On his part the Petitioner submitted that he has reformed during the 15 years he has been in jail; that he did not cause any harm, or injury; that he has a family, that he only threatened his victim and took away the victim’s bicycle which was later recovered.
9. I have carefully considered both aggravating and mitigating factors in this petition. The objective of sentencing is to allow the convict to reform, and the victim to be vindicated. The Petitioner has been in jail for 15 years. Although the crime he is charged with is serious, it is my view that he has atoned for his crime, and having now learnt a trade while in prison, he will hopefully be a useful member of the society.
10. I therefore hereby lift the death sentence imposed on the Petitioner by the trial court. In place thereof I hereby sentence the Petitioner to serve a term in prison equivalent to that period already served. The net effect is that the Petitioner is hereby released and set free unless otherwise lawfully held.
DATED, SIGNED AND DELIVERED AT MOMBASA THIS 27TH DAY OF MAY, 2021.
E. K. OGOLA
JUDGE
Judgment delivered via MS Teams in the presence of:
Petitioner in person
Ms. Wanjohi for DPP
Ms. Peris Court Assistant