[2020] KEHC 9267 (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 seriousness of the offence—murder of the Petitioner's own mother, committed while armed and under the influence of drugs—and the...
Source-derived case information.
- Citation
- [2020] KEHC 9267 (KLR)
- Parties
- Appellant: Hamisi Mwinyi Mwazumba; Respondent: Director of Public Prosecution
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Petition 177 of 2018
- Procedural Posture
- Constitutional Petition / Resentencing Following Supreme Court Decision
- Outcome
- Death sentence set aside; Petitioner resentenced to 30 years imprisonment from date of arrest.
- Judges
- DO Ogembo
- Legal Topics
- Mandatory Death Sentence, Resentencing, Mitigation, Murder, Constitutional Rights, Supreme Court Precedent
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Hamisi Mwinyi Mwazumba
Appellant
Director of Public Prosecution
Respondent
Procedural Posture
Constitutional Petition / Resentencing Following Supreme Court Decision
Legal Issues
- 1 Whether the mandatory death sentence imposed on the Petitioner is unconstitutional in light of the Supreme Court decision in Francis Karioko Muruatetu & Another vs. Republic [2017] eKLR.
- 2 What is the appropriate sentence for the Petitioner upon setting aside the mandatory death sentence.
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 seriousness of the offence—murder of the Petitioner's own mother, committed while armed and under the influence of drugs—and the lack of substantial mitigating circumstances or evidence of reconciliation. The prosecution's request for a 40-year sentence was deemed unpersuasive. Balancing the gravity of the crime, the Petitioner's time already served, and the absence of meaningful mitigation, the court set aside the death sentence and imposed a custodial sentence of 30 years from the date of arrest.
Court Disposition
Death sentence set aside; Petitioner resentenced to 30 years imprisonment from date of arrest.
Orders
- The death sentence previously imposed on the Petitioner is set aside.
- The Petitioner is sentenced to serve 30 years imprisonment from the date of arrest.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MOMBASA
CONSTITUTION AND JUDICIAL REVIEW DIVISION
PETITION NO. 177 OF 2018
HAMISI MWINYI MWAZUMBA…………………………….………….PETITIONER
VERSUS
DIRECTOR OF PUBLIC PROSECUTION………..……….……….….RESPONDENT
JUDGMENT
1. The Petitioner was charged and convicted for offence of murder in Mombasa Criminal Case No. 7 of 2002. He was sentenced to death and he has exhausted his appellate processes.
2. The Petitioner is now in this court pursuant to the decision of the Supreme Court in Francis Karioko Muruatetu & Another vs. Republic [2017]eKLRwhich found the mandatory nature of the death sentence to be unconstitutional.
3. The Petitioner killed his own mother using a knife. He was also armed with a rungu and arrows. He also attacked other members of the family.
4. The Petitioner in his submissions and mitigation stated that he has been in jail for 18 years and that he committed the offence under the influence of drugs. He prayed that he be jailed for the 18 years that he has served in jail.
5. Mr. Fedha, learned counsel for the prosecution submitted that the Petitioner has not reformed, and should be jailed for 40 years.
6. I have considered the submissions. The Petitioner has not offered any mitigating circumstances except that he was drunk at the time of committing the offence. The offence he committed was a serious offence against his own mother. There is no evidence that he has reconciled with other members of the family. Be that as it may, the submission by the prosecution that the Petitioner be jailed for 40 years is not very persuasive.
7. After considering the circumstances of this case I jail the Petitioner for Thirty (30) years.
8. Accordingly, I hereby set aside the death sentence meted on the Petitioner and in place thereof I sentence the Petitioner to serve a term of 30 years in jail from the date of arrest.
9. Right of appeal in 14 days.
That is the judgment of this Court.
Dated, Signed and Delivered at Mombasa this20th day of January, 2020.
E. K. OGOLA
JUDGE
In the presence of:
Mr. Fedha for DPP
Petitioner in person
Mr. Kaunda Court Assistant