[2019] KEHC 4318 (KLR)
The court found that the mandatory death sentence imposed on the Petitioner for robbery with violence was unconstitutional following the Supreme Court's decision in Francis Karioko Muruatetu & Another v Republic. The court considered the circumstances of the offence, the fact that no one was physically harmed, and...
Source-derived case information.
- Citation
- [2019] KEHC 4318 (KLR)
- Parties
- Petitioner: Joseph Mutinda; Respondent: Director of Public Prosecution
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Petition 180 of 2018
- Procedural Posture
- Constitutional Petition / Resentencing Judgment
- Outcome
- petition_allowed
- Legal Topics
- Mandatory Sentencing, Robbery With Violence, Resentencing, Death Penalty, Constitutional Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Mutinda
Petitioner
Director of Public Prosecution
Respondent
Procedural Posture
Constitutional Petition / Resentencing Judgment
Legal Issues
- 1 Whether the mandatory death sentence imposed on the Petitioner for robbery with violence is unconstitutional in light of the Supreme Court decision in Francis Karioko Muruatetu & Another v Republic.
- 2 Whether the Petitioner is entitled to resentencing and immediate release based on time already served.
Ratio Decidendi
The court found that the mandatory death sentence imposed on the Petitioner for robbery with violence was unconstitutional following the Supreme Court's decision in Francis Karioko Muruatetu & Another v Republic. The court considered the circumstances of the offence, the fact that no one was physically harmed, and the Petitioner's 22 years of incarceration. The court determined that the Petitioner had been sufficiently punished, rehabilitated, and reformed. Consequently, the court resentenced the Petitioner to 22 years, corresponding to the period already served, and ordered his immediate release unless otherwise lawfully held.
Court Disposition
petition_allowed
Orders
- The Petitioner is resentenced to 22 years imprisonment.
- Having served the entire sentence, the Petitioner is to be forthwith set free and released from prison unless otherwise lawfully held.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO. 180 OF 2018
JOSEPH MUTINDA...............................................................................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 jointly 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. 2475 of 1997. The particulars being that on 30th June, 1997 in Makadara within Mombasa District jointly with others not before court while armed with dangerous weapon namely a pistol robbed Jesca Situma Nelima cash Kshs. 89,460/= the property of Coast Provincial Hospital.
3. The attack took place in broad day light. The Petitioner was armed with a pistol and he used a Nissan salon car to block the vehicle which was taking the victims to the bank to deposit the cash and ordered them to surrender the cash by brandishing a gun and in the process they threatened to shoot them if they did not surrender.
4. The charge was proved and the Petitioner was jailed to suffer death which was commuted to life imprisonment. The sentence was confirmed in appeal.
5. 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.
6. Mr. Fedha learned counsel for the Director of Public Prosecution has submitted that the Petitioner be sentenced to the 22 years he has already served in the prison.
7. 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.
8. The Petitioner has been in jail for 22 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.
9. The Petitioner is accordingly hereby sentenced to 22 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 20th day of September, 2019.
E. K. OGOLA
JUDGE
In the presence of:
Mr. Fedha for DPP
Petitioner in person
Mr. Kaunda Court Assistant