[2021] KEHC 6325 (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 considered both the mitigating factors (the petitioner's remorse, time served, and efforts at rehabilitation) and the aggravating factors (the use of a...
Source-derived case information.
- Citation
- [2021] KEHC 6325 (KLR)
- Parties
- Petitioner: John Mutua Mutuku; Respondent: Director of Public Prosecution
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Petition 152 of 2018
- Procedural Posture
- Constitutional Petition / Resentencing Judgment
- Outcome
- death sentence set aside; substituted with 22 years imprisonment from date of arrest
- Judges
- DO Ogembo
- Legal Topics
- Resentencing, Mandatory Death Sentence, Robbery With Violence, Mitigation and Aggravation, Supreme Court Precedent
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Mutua Mutuku
Petitioner
Director of Public Prosecution
Respondent
Procedural Posture
Constitutional Petition / Resentencing 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 What is the appropriate sentence for the petitioner considering the mitigating and aggravating circumstances.
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 considered both the mitigating factors (the petitioner's remorse, time served, and efforts at rehabilitation) and the aggravating factors (the use of a panga to inflict head injuries on the victim). Balancing these, the court determined that a deterrent but not excessive sentence was appropriate. The death sentence was set aside and substituted with a custodial sentence of 22 years from the date of arrest.
Court Disposition
death sentence set aside; substituted with 22 years imprisonment from date of arrest
Orders
- The death sentence imposed on the petitioner is lifted.
- The petitioner is sentenced to 22 years imprisonment from the date of arrest.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO. 152 OF 2018
JOHN MUTUA MUTUKU...........................................PETITIONER
VERSUS
THE DIRECTOR OF PUBLIC PROSECUTION.....RESPONDENT
JUDGMENT ON RESENTENCING
1. The Petitioner John Mutua Mutuku was arraigned before the Mombasa Senior Resident Magistrate’s Court in Criminal Case NO.1008 of 2005 on a charge of robbery with violence contrary to Section 296(2) of the Penal Code. The Petitioner entered a plea of ‘not guilty’ and his trial began. After the trial, the learned Trial Magistrate found the Petitioner guilty of the said offence, convicted him and sentenced him to death. Being aggrieved by the decision of the learned Trial Magistrate, the Petitioner filed Mombasa High Court Criminal Appeal No.182 of 2006, which the Court dismissed vide its Judgement delivered on 22nd June, 2006. The Petitioner is seeking a re-sentence in the instant Petition pursuant to the Supreme Court’s decision in Francis Karioko Muruatetu & Another v Republic [2017] eKLR, in which the apex court decided that a mandatory death sentence is against the Constitution.
2. In his submissions the Petitioner stated that he has been in jail for 17 years; that he regretted the offence he committed, and that he has learnt a trade while in prison which will help him to be integrated into the free society. The Petitioner submitted that he used a panga and caused injuries in the victims head.
3. On her part M/S Wanjohi learned prosecutor submitted that cutting somebody with a panga is a heinous offence with huge psychological and physical effect on the victim and that for justice to be seen to be done the Petitioner should be jailed for 30 years.
4. I have considered both mitigating and aggravating factors. I agree with the prosecution that cutting somebody with a panga in the head is such a traumatizing experience and this alone deserved a deterrent sentence. I therefore, while lifting the death sentence imposed on the Petitioner, hereby substitute the same with a jail term of 22 years from the date of arrest.
DATED, SIGNED AND DELIVERED AT MOMBASA THIS 7TH DAY OF JUNE, 2021
E. K. OGOLA
JUDGE
Judgment delivered via MS Teams in the presence of:
Petitioner in person
Ms. Wanjohi for DPP
Ms. Peris Court Assistant