[2020] KEHC 7100 (KLR)
The court found that, following the Supreme Court's decision in Muruatetu, the mandatory death sentence previously imposed on the petitioner was unconstitutional. The court considered the gravity of the offences, which included multiple counts of robbery with violence and gang rape, as well as the petitioner's...
Source-derived case information.
- Citation
- [2020] KEHC 7100 (KLR)
- Parties
- Petitioner: Hamisi Mangale Burehe; Respondent: Director of Public Prosecutions
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Petition 47 of 2017
- Procedural Posture
- Constitutional Petition / Resentencing After Exhaustion of Appeals
- Outcome
- Death sentence set aside; petitioner resentenced to 24 years imprisonment from date of arrest.
- Judges
- DO Ogembo
- Legal Topics
- Mandatory Death Sentence, Resentencing Jurisdiction, Robbery With Violence, Judicial Discretion in Sentencing
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Hamisi Mangale Burehe
Petitioner
Director of Public Prosecutions
Respondent
Procedural Posture
Constitutional Petition / Resentencing After Exhaustion of Appeals
Legal Issues
- 1 Whether the mandatory death sentence imposed on the petitioner is unconstitutional following the Supreme Court decision in Francis Karioko Muruatetu & Another vs. Republic [2017] eKLR.
- 2 Whether the petitioner is entitled to resentencing and, if so, what sentence is appropriate given the gravity of the offences committed.
Ratio Decidendi
The court found that, following the Supreme Court's decision in Muruatetu, the mandatory death sentence previously imposed on the petitioner was unconstitutional. The court considered the gravity of the offences, which included multiple counts of robbery with violence and gang rape, as well as the petitioner's remorse and the period already served. Balancing these factors, the court exercised its discretion to set aside the death sentence and imposed a custodial sentence of 24 years from the date of arrest, emphasizing the need for punishment proportionate to the seriousness of the crimes and the message that crime does not pay.
Court Disposition
Death sentence set aside; petitioner resentenced to 24 years imprisonment from date of arrest.
Orders
- The death sentence imposed on the petitioner by the trial court is set aside.
- The petitioner is sentenced to twenty four (24) years imprisonment from the date of arrest.
Full Case Text
Judgment text and source record
25 paragraphs
THE REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO. 47 OF 2017
HAMISI MANGALE BUREHE....................................PETITIONER
VERSUS
THE DIRECTOR OF PUBLIC PROSECUTIONS....RESPONDENT
JUDGMENT
1. The Petitioner was charged and convicted for 8 counts of robbery with violence contrary to Section 296(2) of the Penal Code in Criminal Case No. 1396 of 2007 Kwale. He was charged together with others. Upon conviction he was sentenced to death. The Petitioner has exhausted all his appellate rights by his appeals being dismissed, and he is now in this court for purposes of resentencing pursuant to the Supreme Court decision in Francis Karioko Muruatetu & Another vs. Republic [2017] eKLRin which the apex court decided that the mandatory nature of the death sentence is unconstitutional.
2. The Petitioner was convicted of attempted robbery with violence, attempted murder, causing grievous harm, breaking into a dwelling house and committing a felony, assault and handling stolen property. These crimes were all committed on different dates in June, 2007 on different victims while armed with axe, pangas, knives and pliers.
3. The Petitioner and his colleagues also gang raped the wife of the complainant. Mr. Fedha, learned counsel for the Director of Public Prosecution submitted that these offences were very grave and should be punished by a sentence of 45 years including the 12 years already served in prison.
4. On his part the Petitioner submitted that he was remorseful and that he was misled by alcohol. The Petitioner submitted that he has now reformed and asked for forgiveness and submitted that he should be jailed for 15 years from the time of arrest.
5. I have considered the petition and submissions. The crimes committed by the Petitioner were grave, and included gang rape of the victim’s wife. These are not small crimes. This Court must send a clear message that crime does not pay. I have considered also the prison progressive report. The Petitioner is now 38 years old and has spent 12 years in jail. This court has the jurisdiction to resentence the Petitioner. I therefore make the following orders:
(i) I set aside the death sentence imposed on the Petitioner by the trial court.
(ii) Instead thereof I hereby jail the Petitioner to twenty Four (24) years from the date of arrest.
6. Right of appeal in 14 days.
7. That is the Judgment of the Court.
Dated, Signed and Delivered at Mombasa this 30th day of March, 2020.
E. K. O. OGOLA
JUDGE
In the presence of:
Ms. Mwangeka for DPP
Petitioner in person via video link
Mr. Kaunda Court Assistant