[2020] KEHC 6665 (KLR)
The High Court held that the mandatory life sentence imposed on the applicant for defilement was unconstitutional in light of the Supreme Court's decision in Muruatetu, which requires courts to consider mitigation and exercise discretion in sentencing. The court found that this principle extends to mandatory minimum...
Source-derived case information.
- Citation
- [2020] KEHC 6665 (KLR)
- Parties
- Applicant: Hassan Abdi Kulant; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Garissa
- Jurisdiction
- Kenya
- Case Number
- Criminal Miscellaneous Application 65 of 2019
- Procedural Posture
- Criminal Miscellaneous Application / Application for Resentencing Following Conviction and Dismissal of Appeal
- Outcome
- Application for resentencing allowed. Mandatory life sentence set aside. Matter referred for resentencing.
- Judges
- CM Kariuki
- Legal Topics
- Defilement, Mandatory Sentencing, Resentencing, Constitutional Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Hassan Abdi Kulant
Applicant
Republic
Respondent
Procedural Posture
Criminal Miscellaneous Application / Application for Resentencing Following Conviction and Dismissal of Appeal
Legal Issues
- 1 Whether the mandatory life sentence imposed on the applicant for defilement is unconstitutional in light of the Supreme Court decision in Muruatetu.
- 2 Whether the applicant is entitled to resentencing after dismissal of his appeal.
Ratio Decidendi
The High Court held that the mandatory life sentence imposed on the applicant for defilement was unconstitutional in light of the Supreme Court's decision in Muruatetu, which requires courts to consider mitigation and exercise discretion in sentencing. The court found that this principle extends to mandatory minimum sentences for offences such as defilement. Since the prosecution did not oppose the application, and the applicant had not had the benefit of mitigation being considered at sentencing, the court set aside the sentence and referred the matter back to the Chief Magistrate's Court for resentencing after considering mitigation.
Court Disposition
Application for resentencing allowed. Mandatory life sentence set aside. Matter referred for resentencing.
Orders
- The sentence of death in Criminal Case No. 104 of 2013 – Garissa Chief Magistrate’s Court is set aside.
- The matter is referred back to the Chief Magistrate’s Court at Garissa for sentencing after considering mitigations.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT GARISSA
CRIMINAL MISC. APPLICATION NO. 65 OF 2019
HASSAN ABDI KULANT...............APPLICANT
VERSUS
REPUBLIC...................................RESPONDENT
RULING
1. The applicant was the 1st accused in trial court where he was convicted and sentenced to serve life imprisonment for defilement of a girl aged 6 years.
2. He lodged Criminal Appeal No. 75 of 2015 as consolidated with Criminal Appeal NO. 76 of 2015. After hearing the same was dismissed.
3. He did not go to Court of Appeal. He now moves this court for resentencing as he was awarded mandatory life sentence in Criminal Case No. 104 of 2013 at Garissa.
4. The prosecution does not oppose the application. The applicant relied on the Supreme Court case of Muruatetu 2017 eKLR which held that mandatory nature of death sentence is unconstitutional. Same ruling has been applied to mandatory nature of minimum sentences by the High Court and the Court of Appeal.
5. Thus the court makes the following orders:
(i) The sentence of death in Criminal Case No. 104 of 2013 – Garissa Chief Magistrate’s Court is set aside.
(ii) The matter is referred back to the Chief Magistrate’s Court at Garissa for sentencing after considering mitigations.
DATED, DELIVERED AND SIGNED AT GARISSA THIS 2ND DAY OF APRIL, 2020.
……………….………………
C. KARIUKI
JUDGE