[2021] KEHC 7712 (KLR)
The court found that, following the Supreme Court's decision in Muruatetu, the mandatory death sentence for robbery with violence is unconstitutional. The court exercised its discretion to review the sentence, considering both mitigating and aggravating factors. The petitioner was a first offender and claimed to...
Source-derived case information.
- Citation
- [2021] KEHC 7712 (KLR)
- Parties
- Appellant: Hassan Juma; Respondent: Director of Public Prosecution
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Petition 92 of 2019
- Procedural Posture
- Constitutional Petition / Judgment
- Outcome
- death sentence substituted with 17 years imprisonment from date of arrest
- Judges
- DO Ogembo
- Legal Topics
- Sentencing Review, Robbery With Violence, Mandatory Death Sentence, Mitigating and Aggravating Factors
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Hassan Juma
Appellant
Director of Public Prosecution
Respondent
Procedural Posture
Constitutional Petition / Judgment
Legal Issues
- 1 Whether the mandatory death sentence for robbery with violence is unconstitutional in light of the Supreme Court decision in Muruatetu.
- 2 Whether the petitioner is entitled to a review of sentence based on time served, mitigating and aggravating circumstances.
- 3 What is the appropriate sentence for the petitioner given the facts and legal developments.
Ratio Decidendi
The court found that, following the Supreme Court's decision in Muruatetu, the mandatory death sentence for robbery with violence is unconstitutional. The court exercised its discretion to review the sentence, considering both mitigating and aggravating factors. The petitioner was a first offender and claimed to have reformed, but the aggravating circumstances included the use of a knife and actual injury to the victim. The court determined that the aggravating factors outweighed the mitigating ones. Comparative sentencing in similar cases was considered, and the court concluded that a custodial sentence of seventeen years from the date of arrest was appropriate, substituting the death...
Court Disposition
death sentence substituted with 17 years imprisonment from date of arrest
Orders
- The death sentence is set aside.
- The petitioner is sentenced to serve seventeen (17) years imprisonment from the date of arrest.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
PETITION NO. 92 OF 2019
HASSAN JUMA....................................................PETITIONER
AND
DIRECTOR OF PUBLIC PROSECUTION.....RESPONDENT
JUDGMENT
1. The Petitioner was convicted for the offence of Robbery with Violence contrary to Section 295 as read with 296(2) of the Penal Code and sentenced to death in Kwale Cr. Case No. 1669 of 2010. He appealed in Mombasa HCCRA No. 8 of 2012 and his Appeal was dismissed and sentence upheld.
2. The Petitioner has now petitioned this Court for review of sentence in view of the Supreme Court declaration in Francis Kariokor Muruatetu & Another v Republic SCK Pet. No. 15 of 2015 [2017] eKLRin which the apex court found the mandatory nature of the death sentence to be unconstitutional.
Brief Circumstance of the offence
3. The particulars are that on 2/11/2010 at Fahamuni village in Kwale County, with another while armed with a dangerous weapon namely a knife, robbed Sadik Abdi Mwendo of his motorcycle valued at Kshs. 80,000/=, Kshs. 1500/=, a national identification card, an interim driving license and immediately before or immediately after the robbery wounded their victim.
4. The Petitioner submitted that at the time of his arrest, he was a first offender, and the over 10 years he has been in prison have reformed him. He is now of good behavior and he regrets his actions during the incident. The Petitioner further submitted that he is very remorseful, and he promises not to repeat that crime or any other crime in his lifetime if given an opportunity to rejoin the society. The Petitioner also urged this Court to consider the time spent in remand prior to his conviction and sentence.
5. Ms. Moke, the learned prosecutor for the prosecution submitted that taking into account the circumstances of the case, a deterrent sentence of 30 years including time served in prison would be appropriate.
6. I have considered the petition, the submissions by the Petitioner and the prosecution. Sentencing is a discretion of the trial court. In Ambani v Republic [1990] KLR, Bosire J. (as he then was) stated that a sentence imposed on an accused person must be commensurate to the moral blameworthiness of the offender and that the court should look at the facts and the circumstances of the case in its entirety before settling for any given sentence.
7. Section 333 (2) of the Criminal Procedure Code requires a sentencing court to take into account the period spent in custody awaiting trial.
8. I have now considered the mitigating and aggravating circumstances in the case. In my view, the nature of this robbery does not call for invocation of the death penalty. However, in this case there are aggravating circumstances involve the use of a knife, which eventually injured the victim’s hand when he tried to save himself from being murdered by the Petitioner and his accomplice. In my view, the mitigating circumstances of the Petitioner being a first offender and being misled do not outweigh the aggravating circumstances.
9. I have also considered the sentences imposed in almost similar circumstances and where convicts of robbery with violence were re-sentenced after the Supreme Court decision in the Muruatetu case. In Wycliffe Wangugi Mafura v Republic Eldoret Criminal Appeal No. 22 of 2016 [2018] the Court of Appeal imposed a sentence of 20 years’ imprisonment where the appellant was involved in robbing an Mpesa shop agent with the use of firearm but no actual injuries were inflicted on the victim.
10. In conclusion, and in consideration of the fact that the victim was injured and lucky to get away with his life, this Court substitutes the death sentence herein, and hereby sentences the petitioner to serve a jail term of seventeen (17) years from the date of arrest.
That is the Judgment of the court.
DATED, SIGNED AND DELIVERED AT MOMBASA THIS 13TH DAY APRIL, OF 2021
E. K. O. OGOLA
JUDGE
Judgment delivered via MS Teams in the presence of:
Petitioner in person
Ms. Wanjohi for DPP
Ms. Peris Court Assistant