[2019] KEHC 5055 (KLR)
The court found that, pursuant to the Supreme Court decision in Muruatetu, the mandatory death sentence is unconstitutional and courts must consider individual circumstances. The petitioner had already served 20 years, was suffering from throat cancer, and had a favourable Social Inquiry Report indicating family...
Source-derived case information.
- Citation
- [2019] KEHC 5055 (KLR)
- Parties
- Petitioner: John Kamande Mwangi; Respondent: Director of Public Prosecution
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Petition 162 of 2018
- Procedural Posture
- Constitutional Petition / Judgment
- Outcome
- petition allowed; petitioner resentenced to time served and released
- Judges
- DO Ogembo
- Legal Topics
- Resentencing, Mandatory Death Sentence, Right to Fair Trial, Mitigating Circumstances
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Kamande Mwangi
Petitioner
Director of Public Prosecution
Respondent
Procedural Posture
Constitutional Petition / Judgment
Legal Issues
- 1 Whether the petitioner is entitled to resentencing following the Supreme Court decision in Muruatetu.
- 2 Whether the petitioner's medical condition and time served warrant his release.
- 3 Whether continued incarceration serves any penological purpose given the petitioner's circumstances.
Ratio Decidendi
The court found that, pursuant to the Supreme Court decision in Muruatetu, the mandatory death sentence is unconstitutional and courts must consider individual circumstances. The petitioner had already served 20 years, was suffering from throat cancer, and had a favourable Social Inquiry Report indicating family support and reformation. The Director of Public Prosecutions did not oppose the petitioner's release in light of his medical condition and lack of risk to society. The court held that the petitioner had suffered enough for his crime and that continued incarceration was not justified. Accordingly, the court limited the sentence to time already served and ordered the petitioner's...
Court Disposition
petition allowed; petitioner resentenced to time served and released
Orders
- The petitioner is sentenced to the term already served.
- The petitioner is forthwith released and set free unless lawfully held for another reason.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO. 162 OF 2018
IN THE MATTER OF: SUPREME COURT PETITION NO. 15 OF 2015
FRANCIS KARIOKO MURUATETU & ANOTHER VS. REPUBLIC
AND
IN THE MATTER: OF: COURT OF APPEAL NO. 65 OF 2002 MOMBASA
AND
IN THE MATTER OF: HIGH COURT APPEAL NO. 178 OF 2001 AT MOMBASA
AND
IN THE MATTER OF: CRIMINAL CASE NO. 213 OF 1999 MALINDI
BETWEEN
JOHN KAMANDE MWANGI......................................................PETITIONER
VERSUS
DIRECTOR OF PUBLIC PROSECUTION..............................RESPONDENT
JUDGMENT
1. The Petitioner was charged and convicted of offence of robbery with violence in Criminal Case No. 213 of 1999 (Malindi). His appeal was dismissed. The current petition is brought for resentencing pursuant to the Supreme Court decision in Francis Karioko Muruatetu and Another vs. Republic [2017] eKLR.
2. The Petitioner was sentenced to death and has now served 20 years in jail. The Petitioner is a sick man. According to the Medical Report and Progress Report from the prison, the Petitioner suffers from throat cancer. He can hardly talk, and is evidently in pain.
3. The Petitioner is 53 years. The Social Inquiry Report filed herein is favourable for his early release. Mr. Fedha for the Director of Public Prosecutions had earlier submitted that the Petitioner be jailed for 35 years. However, upon seeing and considering the medical report and the physical condition of the Petitioner the Director of Public Prosecutions submitted that the Petitioner is a sick man and not a risk to society and that he should be released.
4. I have considered all the circumstances of this case. The Petitioner has served 20 years. He is a sick man who needs to be cared for by his family. The Social Inquiry Report filed herein on 20th June, 2019 is favourable that the Petitioner has a family who can care for him, as he attends chemotherapy at Kenyatta Hospital in Nairobi.
5. The Petitioner has been disciplined while in prison. He says that he has already reformed.
6. In my view, it is unfortunate that the Petitioner is a sick man. He has suffered enough for the crime he committed. I will limit his punishment to the 20 years he has already served.
7. In conclusion the Petitioner is jailed to term equivalent to that already served with the result that the Petitioner is herewith forthwith released and set free unless lawfully held.
That is the Judgment of the Court.
Dated, Signed and Delivered in Mombasa this 24th day of July, 2019.
E. K. OGOLA
JUDGE
In the presence of:
Mr. Fedha for DPP
Petitioner in person
Mr. Kaunda Court Assistant