[2019] KEHC 12157 (KLR)
The court found that, following the Supreme Court's decision in Francis Karioko Muruatetu & Another v Republic, the mandatory death sentence for robbery with violence is unconstitutional. The petitioner, having served 10 years, demonstrated remorse, advanced age, and ill health. The court exercised its discretion to...
Source-derived case information.
- Citation
- [2019] KEHC 12157 (KLR)
- Parties
- Applicant: Harun Stephen Meshak; Respondent: The Director of Public Prosecutions
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Petition 96 of 2018
- Procedural Posture
- Constitutional Petition / Judgment
- Outcome
- petition allowed in part; petitioner resentenced to time served and released unless otherwise lawfully held.
- Judges
- DO Ogembo
- Legal Topics
- Mandatory Sentencing, Resentencing Guidelines, Robbery With Violence, Death Penalty, Penal Code Interpretation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Harun Stephen Meshak
Applicant
The Director of Public Prosecutions
Respondent
Procedural Posture
Constitutional Petition / Judgment
Legal Issues
- 1 Whether the mandatory death sentence for robbery with violence under Section 296(2) of the Penal Code is unconstitutional in light of the Supreme Court decision in Francis Karioko Muruatetu & Another v Republic.
- 2 Whether the petitioner is entitled to resentencing based on the period already served, age, health, and remorse.
Ratio Decidendi
The court found that, following the Supreme Court's decision in Francis Karioko Muruatetu & Another v Republic, the mandatory death sentence for robbery with violence is unconstitutional. The petitioner, having served 10 years, demonstrated remorse, advanced age, and ill health. The court exercised its discretion to resentence the petitioner to the period already served, holding that 10 years' imprisonment was sufficient punishment. Consequently, the petitioner was ordered to be released unless otherwise lawfully held.
Court Disposition
petition allowed in part; petitioner resentenced to time served and released unless otherwise lawfully held.
Orders
- The petitioner is resentenced to 10 years served.
- The petitioner is to be released and set free unless lawfully held for another cause.
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. 96 OF 2018
HARUN STEPHEN MESHAK..........................................................PETITIONER
VERSUS
THE DIRECTOR OF PUBLIC PROSECUTIONS......................RESPONDENT
JUDGMENT
1. The Petitioner herein was charged and convicted with the offence of Robbery with Violence contrary to Section 296(2) of the Penal Code in Mombasa Chief Magistrate Criminal Case No. 434 of 2009 and sentenced to death. The Petitioner subsequently lodged an appeal and his appeal was dismissed.
2. Brief facts of the case are that on 10th March, 2009 the Petitioner while armed with a pistol together with others robbed owner of Likizo Cottages, Dr. Kurt Lux and his colleagues’ mobile phones and cash.
Hearing and Submissions
3. Parties filed their submissions and the petition came up for hearing on 25th September, 2019.
4. It was the Petitioner’s submissions that he regrets his action and is sickly at 72 years.
The Determination
5. On the issue of sentence, this court relies on the Supreme Court case in Francis Karioko Muruatetu & Another -vs- Republic [2017] eKLR declared where the mandatory nature of the death sentence as provided for under Section 204 of the Penal Code was found to be unconstitutional. To that extent this court can now resentence the Petitioner.
6. The Petitioner has already served 10 years in custody. He is remorseful, sickly and now 72 years old.
7. Under the circumstances this court is satisfied that the 10 years behind the bars is sufficient punishment for the Petitioner.
8. The upshot is that the Petitioner is hereby sentenced to 10 years served, with the result that the Petitioner is hereby released and set free unless lawfully held.
Dated, Signed and Delivered in Mombasa this 10th day of December, 2019.
E. K. O. OGOLA
JUDGE
In the presence of:
Mr. Fedha for DPP
Petitioner in person
Mr. Kaunda Court Assistant