[2019] KEHC 2728 (KLR)
The court found that, pursuant to the Supreme Court decision in Muruatetu, the mandatory death sentence imposed on the applicant under section 296(2) of the Penal Code was unconstitutional. As a result, the death sentence was set aside. The court ordered that the applicant be referred back to the Chief Magistrate’s...
Source-derived case information.
- Citation
- [2019] KEHC 2728 (KLR)
- Parties
- Applicant: Ibrahim Ali Mohamed; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Garissa
- Jurisdiction
- Kenya
- Case Number
- Petition 21 of 2018
- Procedural Posture
- Constitutional Petition / Application for Resentencing Following Supreme Court Decision
- Outcome
- Application for resentencing allowed; death sentence set aside; matter referred for resentencing.
- Judges
- CM Kariuki
- Legal Topics
- Robbery With Violence, Mandatory Death Sentence, Resentencing, Handling Stolen Property
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ibrahim Ali Mohamed
Applicant
Republic
Respondent
Procedural Posture
Constitutional Petition / Application for Resentencing Following Supreme Court Decision
Legal Issues
- 1 Whether the mandatory death sentence imposed under section 296(2) of the Penal Code is unconstitutional in light of the Supreme Court decision in Muruatetu.
- 2 Whether the applicant is entitled to resentencing based on the unconstitutionality of the mandatory death sentence.
Ratio Decidendi
The court found that, pursuant to the Supreme Court decision in Muruatetu, the mandatory death sentence imposed on the applicant under section 296(2) of the Penal Code was unconstitutional. As a result, the death sentence was set aside. The court ordered that the applicant be referred back to the Chief Magistrate’s Court for resentencing, where the trial court is to consider mitigation and the period the applicant has been in custody since arrest. The State did not oppose the application, and the court acted in accordance with the new constitutional and jurisprudential standards regarding sentencing in capital offences.
Court Disposition
Application for resentencing allowed; death sentence set aside; matter referred for resentencing.
Orders
- The death sentence in Garissa Chief Magistrate’s Court Criminal Case No. 1380 of 2013 is hereby set aside.
- The applicant is referred back to Chief Magistrate’s Court Garissa for resentencing in Criminal Case No. 1380 of 2013 for sentencing after considering mitigation and period he has been in custody since the time of arrest.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT GARISSA
PETITION NO. 21 OF 2018
IBRAHIM ALI MOHAMED.........................................................PETITIONER
VERSUS
REPUBLIC....................................................................................RESPONDENT
RULING
1. The applicant was charged with two counts and alternative charge. Count I: robbery with violence contrary to section 296(2) of the Penal Code. Particulars being that on 31st day of August 2013 at Dagahaley Refugee Camp in Dadaab Distrit with other not before court robbed one Mannah Abdullahi Hamud Kshs.35,000/= gold chain and rings valued at Kshs.25,000/= by use of violence or threatening to use violence.
2. Count II was also of robbery with violence contrary to section 296 (2) of the Penal Code. Particulars too are as per the charge sheet that the accused robbed one Nurta Barre Ibrahim.
3. The accused is also faced with the alternative count of handling stolen property (goods) contrary to section 322(1) (3) of the Penal Code. Particulars being that on 31st day of August 2013 at Dagahaley Refugee Camp in Dadaab District otherwise than in the course of stealing dishonestly retained one mobile phone Nokia 1280 knowingly or having reasons to believe it to be stolen goods the property of Nurta Ibrahim.
4. He pleaded not guilty and trial ensued. He was found guilty and convicted and sentenced to death.
5. He appealed in the High Court vide Appeal No. HC Garissa HCCRA No. 21 of 2015 which was dismissed after full hearing. He never appealed again.
6. He has moved this court for resentencing pursuant to Supreme Court Case of Muruatetu which held that the mandatory aspect of death sentence is unconstitutional.
7. The State does not oppose the application. Thus the court makes the following orders:
(1) The death sentence in Garissa Chief Magistrate’s Court Criminal Case No. 1380 of 2013 is hereby set aside.
(2) The applicant is referred back to Chief Magistrate’s Court Garissa for resentencing in Criminal Case No. 1380 of 2013 for sentencing after considering mitigation and period he has been in custody since the time of arrest.
DATED, DELIVERED AND SIGNED AT GARISSA THIS 5TH DAY OF NOVEMBER, 2019.
.......................
C. KARIUKI
JUDGE