[2020] KEHC 565 (KLR)
The court held that, following the Supreme Court's decision in Muruatetu, the mandatory death sentence for robbery with violence is unconstitutional as it removes judicial discretion and the right to a fair trial. The court considered the petitioner's remorse, rehabilitation, age at the time of the offence, and the...
Source-derived case information.
- Citation
- [2020] KEHC 565 (KLR)
- Parties
- Petitioner: John Bosco Njue Ndwiga; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kerugoya
- Jurisdiction
- Kenya
- Case Number
- Criminal Petition 3 of 2018
- Procedural Posture
- Criminal Petition / Resentencing After Exhaustion of Appeals
- Outcome
- Sentence reduced from life imprisonment to 25 years imprisonment.
- Judges
- JK Mulwa
- Legal Topics
- Robbery With Violence, Sentencing Principles, Mitigation, Mandatory Sentences, Constitutional Rights, Judicial Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Bosco Njue Ndwiga
Petitioner
Republic
Respondent
Procedural Posture
Criminal Petition / Resentencing After Exhaustion of Appeals
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 resentencing and reduction of sentence based on mitigation and rehabilitation.
Ratio Decidendi
The court held that, following the Supreme Court's decision in Muruatetu, the mandatory death sentence for robbery with violence is unconstitutional as it removes judicial discretion and the right to a fair trial. The court considered the petitioner's remorse, rehabilitation, age at the time of the offence, and the fact that he was a first offender. The court also took into account the seriousness of the offence, as a life was lost, and the precedent set by the resentencing of the petitioner's co-accused to 25 years imprisonment. Balancing these factors, the court found it appropriate to reduce the petitioner's sentence from life imprisonment to a term of years, aligning with the sentence...
Court Disposition
Sentence reduced from life imprisonment to 25 years imprisonment.
Orders
- The petitioner's sentence is reduced to 25 years imprisonment from the date of initial conviction.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KERUGOYA
CRIMINAL PETITION NO. 3 OF 2018
JOHN BOSCO NJUE NDWIGA.................PETITIONER
VERSUS
REPUBLIC..................................................RESPONDENT
RULING
The Petitioner was charged with the offence of robbery with violence Contrary to Section 296(2) of the Penal Code convicted and sentenced to death which sentence was later commuted to life imprisonment.
All his appeals to the High Court and Court of Appeal were dismissed for lack of merit. HCRA No. 191/2013 was dismissed on the 14/7/2014 and Court of Appeal No. 78 of 2014 dismissed on the 7/6/2017 thus exhausting the appellate process.
By a petition filed on the 4/5/2018, the Petitioner petitioned for resentencing and urged for reduction of the sentence. He further filed mitigating submissions on the 8/7/2020. Pursuant to the Supreme Court Petitions No. 15 and 16 of 2015 Francis Karioko Muruatetu –v- Republic (2017) @ KLR wherein the highest court in the County held that the mandatory death sentence was unconstitutional as it denies an accused person the right to a fair and absolute right under Article 25 (c) of the Constitution and inhibited the exercise of judicial discretion during sentencing.
I have considered the mitigation factors as filed. The Petitioner exhibits remorsefulness for the offence he committed and seeks for forgiveness from the victim’s family whose life was lost during the robbery.
It is a further submission that in the 10 years imprisonment period, he has learnt useful trades through vocational trainings (certificates attached and seen). He was a first offender.
At date of commission of the offence, he was only 24 years old, and now 34. He prays to be given a second chance in life.
The Learned Assistant Prosecution Counsel Mr. Ashimosi by his submissions while conceding to reduction of the sentence, submits that a life was lost during the robbery and therefore being a serious offence, the court may consider reduction to 25 years, upon taking into account that the petitioners Co-accused, Charles Maina Gitonga was on the 30/7/2020 resentenced to 25 years Imprisonment by the court in High Court Petition No. 10 of 2019 (Gitari J).
Dated, Signed and Delivered at Kerugoya this 26th day of November, 2020.
J. N. MULWA
JUDGE