[2019] KEHC 3715 (KLR)
The court found that the petitioner, having served 22 years in prison for robbery with violence, had demonstrated remorse and reformation. The petitioner's health conditions and the absence of injury to the victim were considered. The court determined that the objectives of sentencing had been met and that continued...
Source-derived case information.
- Citation
- [2019] KEHC 3715 (KLR)
- Parties
- Petitioner: Hamisi Salim Munyoki; Respondent: Director of Public Prosecution
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Petition 132 of 2018
- Procedural Posture
- Constitutional Petition / Judgment
- Outcome
- petition allowed; death sentence set aside; petitioner released
- Judges
- DO Ogembo
- Legal Topics
- Resentencing, Right to Fair Trial, Protection of Fundamental Rights, Robbery With Violence, Penal Code Interpretation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Hamisi Salim Munyoki
Petitioner
Director of Public Prosecution
Respondent
Procedural Posture
Constitutional Petition / Judgment
Legal Issues
- 1 Whether the mandatory death sentence for robbery with violence should be set aside in light of constitutional protections and the petitioner's circumstances.
- 2 Whether the period already served by the petitioner is sufficient to meet the objectives of sentencing.
Ratio Decidendi
The court found that the petitioner, having served 22 years in prison for robbery with violence, had demonstrated remorse and reformation. The petitioner's health conditions and the absence of injury to the victim were considered. The court determined that the objectives of sentencing had been met and that continued incarceration would not serve further justice. Consequently, the mandatory death sentence was set aside and substituted with a sentence of 22 years, which the petitioner had already served, warranting his immediate release unless otherwise lawfully held.
Court Disposition
petition allowed; death sentence set aside; petitioner released
Orders
- The death sentence imposed on the petitioner is set aside.
- The petitioner is sentenced to 22 years imprisonment, deemed already served.
Full Case Text
Judgment text and source record
43 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO. 132 OF 2018
IN THE MATTER OF: THE CONSTITUTION OF KENYA 2010
(SUPERVISORYJURISDICTION AND PROTECTION OF FUNDAMENTAL
RIGHTS AND FREEDOMS OF AN INDIVIDUAL) HIGH COURT
PRACTICE AND PROCEDURE RULES 2013
AND
IN THE MATTER OF: ARTICLE 22(1) OF THE CONSTITUTION
AND
IN THE MATTER OF: ARTICLE 23(1) OF THE CONSTITUTION
AND
IN THE MATTER OF: ARTICLES 19, 20, 21, 22, 23, 24, 25, 27,
28,48, 50, 258 AND 259 OF THE CONSTITUTION
AND
IN THE MATTER OF: ARTICLE 53(1) OF THE CONSTITUTION
AND
IN THE MATTER OF: SECTIONS 4(2)(A) AND 296(2) OF THE PENAL CODE
AND
IN THE MATTER OF: SECTIONS 322(2) OF THE PENAL CODE
AND
IN THE MATTER OF: SECTIONS 50 OF T HE EVIDENCE ACT
BETWEEN
HAMISI SALIM MUNYOKI.................................................PETITIONER
AND
DIRECTOR OF PUBLIC PROSECUTION........................RESPONDENT
JUDGMENT
1. The matter before the Court is a petition by the Petitioner for resentencing. The Petitioner is serving a death sentence at Shimo La Tewa prison having been convicted of a charge of robbery with violence in Criminal Case No. SPMC 730 of 1997. He has since served 22 years from the date or arrest.
2. The Petitioner was in possession of firearm at the time of commission of the crime. His victim was a retired nurse from Switzerland who was residing alone at Watamu in Timbono area, Malindi. The victim was however, not injured in the robbery.
3. The Petitioner submitted that he has reformed and should be jailed for the 22 years he has served in jail.
4. On his part the Director of Public Prosecution Mr. Fedha submitted that the Petitioner be jailed for 25 years.
5. I have considered these submissions. The Petitioner appears to me to be remorseful. He also suffers from hypertension and ischaemis, conditions which make life more difficult in prison. The Petitioner has learnt his lesson. In my view the objectives of sentencing have been met, and the Petitioner has served time enough to atone for his crime.
6. In the upshot, the Court hereby sets aside the death sentence and substitutes the same with a sentence of 22 years, which, the Petitioner having served the same, the Petitioner is hereby set free and released from prison unless validly held.
That is the Judgment of the Court.
Dated, Signed and Delivered at Mombasa this 14th day of October, 2019.
E. K. OGOLA
JUDGE
In the presence of:
Mr. Fedha for DPP
Petitioner in person
Mr. Kaunda Court Assistant