[2021] KEHC 4734 (KLR)
The court found that, following the Supreme Court's clarification, the Muruatetu decision on the unconstitutionality of mandatory death sentences is limited to murder cases and does not apply to robbery with violence. Consequently, the High Court lacks jurisdiction to resentence the petitioner for robbery with...
Source-derived case information.
- Citation
- [2021] KEHC 4734 (KLR)
- Parties
- Appellant: Joseph Wambua Masoo; Respondent: Director of Public Prosecution
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Petition 170 of 2019
- Procedural Posture
- Constitutional Petition / Judgment
- Outcome
- petition dismissed with directions
- Judges
- DO Ogembo
- Legal Topics
- Mandatory Sentencing, Resentencing Jurisdiction, Robbery With Violence, Supreme Court Guidance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Wambua Masoo
Appellant
Director of Public Prosecution
Respondent
Procedural Posture
Constitutional Petition / Judgment
Legal Issues
- 1 Whether the mandatory life imprisonment sentence for robbery with violence is unconstitutional in light of the Supreme Court decision in Muruatetu.
- 2 Whether the High Court has jurisdiction to resentence the petitioner for robbery with violence after the Supreme Court's clarification limiting Muruatetu to murder cases.
- 3 Whether the period spent in remand should be deducted from the petitioner's sentence.
Ratio Decidendi
The court found that, following the Supreme Court's clarification, the Muruatetu decision on the unconstitutionality of mandatory death sentences is limited to murder cases and does not apply to robbery with violence. Consequently, the High Court lacks jurisdiction to resentence the petitioner for robbery with violence. However, the petitioner is entitled to have the period spent in remand custody deducted from his sentence, as required by Section 333(2) of the Criminal Procedure Code. The petition for resentencing is therefore dismissed, but the prison authorities are directed to ensure the remand period is accounted for in the petitioner's sentence.
Court Disposition
petition dismissed with directions
Orders
- The petition for resentencing is dismissed.
- The prison authority is directed to deduct the period spent in remand from the petitioner's sentence.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MOMBASA
PETITION NO. 170 OF 2019
JOSEPH WAMBUA MASOO...........................................................PETITIONER
AND
DIRECTOR OF PUBLIC PROSECUTION..................................RESPONDENT
JUDGMENT
1. The Petitioner was convicted for the offence of Robbery with Violence contrary to Section 295 as read with 296(2) of the Penal Code and sentenced to death in Kwale Cr. Case No. 1956 of 2007. He appealed in Mombasa HCCRA No. 263 of 2008 and Appeal was dismissed and sentence upheld. He also appealed to the Court of Appeal and the appeal was dismissed and sentence upheld.
2. The Petitioner has now petitioned this Court for review of sentence in view of the Supreme Court declaration in Francis Kariokor Muruatetu & Another v Republic SCK Pet. No. 15 of 2015 [2017]) eKLRin which the apex court found the mandatory nature of the death sentence to be unconstitutional.
Brief Circumstance of the Offence
3. The particulars are that on 4/10/2007, near Kinondo Kwetu Hotel, area, the Petitioner jointly with others not before Court, while armed with dangerous weapons namely metal bars, robbedNils Filip OssianAndersson,his wife,Ida Orgy Andersonand their driverMr. William Ngala Chiraoof a Sony Erickson phone, a Motorola phone, a Nokia 3310, wrist watches, shoes, a cap and a pen knife, and immediately after the robbery used actual violence to the said victims. The victims were subsequently examined and the injuries they sustained were classified harm caused by a blunt object.
4. The Petitioner on his part submitted that the life imprisonment meted upon him by the trial magistrate was unconstitutional since the mandatory nature of the sentence is dehumanizing having denied him the prospect of release. He further submitted that he regretted the offence and he is reformed. He prayed for mercy and leniency since he was just a first offender.
5. Ms. Wanjohi for the prosecution submitted that taking into account the circumstances of the case, a deterrent sentence of 20 years including time served would be appropriate.
6. I have considered the petition, the submissions by the Petitioners and the D.P.P. Sentencing is a discretion of the trial court. In Ambani v Republic [1990] KLR, Bosire J. (as he then was) stated that a sentence imposed on an accused person must be commensurate to the moral blameworthiness of the offender and that the court should look at the facts and the circumstances of the case in its entirety before settling for any given sentence.
7. Section 333 (2) of the Criminal Procedure Code requires a sentencing court to take into account the period spent in custody awaiting trial.
8. In the cause of these proceedings the Supreme Court on 6/7/2021 issued fresh directions on applicability of the Muruatetu case and limited it to murder offences. By that act, this Court was divested of the jurisdiction to resentence the Petitioner. So this petition is dismissed. However, the Petitioner is entitled to have time he spent in remand to be deducted from his sentence. The prison authority is directed to ensure this is done.
9. Save for the above paragraph (8) the petition is dismissed.
That is the Judgment of the Court.
DATED, SIGNED AND DELIVERED AT MOMBASA THIS 29TH DAY OF JULY, 2021.
E. K. O. OGOLA
JUDGE
Judgment delivered via MS Teams in the presence of:
Petitioner in person
Ms. Wanjohi for DPP
Ms. Peris Court Assistant