[2019] KEHC 11670 (KLR)
The court held that following the Supreme Court's decision in Francis Karioko Muruatetu & Another vs. Republic, the mandatory death sentence imposed on the petitioner for robbery with violence was unconstitutional. The court exercised its discretion to resentence the petitioner, taking into account the 20 years...
Source-derived case information.
- Citation
- [2019] KEHC 11670 (KLR)
- Parties
- Petitioner: James Kimani Njuguna; Respondent: Director of Public Prosecution
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Petition 30 of 2018
- Procedural Posture
- Constitutional Petition / Judgment
- Outcome
- petition allowed; petitioner resentenced and released
- Judges
- DO Ogembo
- Legal Topics
- Mandatory Sentencing, Resentencing, Death Penalty, Robbery With Violence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Kimani Njuguna
Petitioner
Director of Public Prosecution
Respondent
Procedural Posture
Constitutional Petition / Judgment
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 Francis Karioko Muruatetu & Another vs. Republic.
- 2 Whether the petitioner is entitled to resentencing following the declaration of unconstitutionality of the mandatory death sentence.
Ratio Decidendi
The court held that following the Supreme Court's decision in Francis Karioko Muruatetu & Another vs. Republic, the mandatory death sentence imposed on the petitioner for robbery with violence was unconstitutional. The court exercised its discretion to resentence the petitioner, taking into account the 20 years already served, the absence of physical harm to the victim, and the petitioner's demonstrated rehabilitation and reformation. The court found that the petitioner had suffered sufficient retribution and was fit for release, and accordingly resentenced him to 20 years imprisonment, resulting in his immediate release as he had already served the full term.
Court Disposition
petition allowed; petitioner resentenced and released
Orders
- The petitioner is sentenced to 20 years in jail, deemed served.
- The petitioner is forthwith set free and released from prison unless otherwise lawfully held.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MOMBASA
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO. 30 OF 2018
JAMES KIMANI NJUGUNA………………....………….……….PETITIONER
VERSUS
DIRECTOR OF PUBLIC PROSECUTION……..…..………….RESPONDENT
JUDGMENT
1. The matter before the Court is a petition by the Petitioner for resentencing.
2. The Petitioner herein was charged with robbery with violence contrary to Section 296 (2) of the penal code and thereafter sentenced to mandatory death sentence in Criminal Case No. 525 of 1998. The particulars being that on 7th March, 1998 jointly with others not before court robbed Dickson Kahindi of Kshs. 145,000/=, a radio cassette player and video machine, and immediately before or after the time of the robbery threatened to use actual violence to the said Dickson Kahindi.
3. The charge was proved and the Petitioner was jailed to suffer death. The sentence was confirmed in appeal.
4. The Petitioner is now before this Court pursuant to the Supreme Court decision in Francis Karioko Muruatetu & Another vs. Republic [2017] eKLR in which the Court declared mandatory death sentence to be unconstitutional.
5. Mr. Fedha learned counsel for the Director of Public Prosecution has submitted that the Petitioner be sentenced to the 20 years he has already served in the prison.
6. I have considered the submissions. The Petitioner was involved in a heinous offence in which he threatened violence but we thank God he did not harm anybody.
7. The Petitioner has been in jail for 20 years. In my view, the Petitioner has learned from his mistake and has also suffered retribution, has been rehabilitated and I believe is also reformed.
8. The Petitioner is accordingly hereby sentenced to 20 years in jail, and having served the entire sentence the Petitioner is hereby forthwith set free and released from prison unless otherwise lawfully held.
That is the Judgment of the Court.
Dated, Signed and Delivered in Mombasa this 18th day of September, 2019.
E. K. OGOLA
JUDGE
In the presence of:
Mr. Fedha for DPP
Petitioner in person
Mr. Kaunda Court Assistant