[2021] KEHC 7002 (KLR)
The court found that, although the original sentence of death was lawful at the time, the Supreme Court's decision in Muruatetu rendered the mandatory death sentence unconstitutional. Consequently, the petitioner was entitled to resentencing. In determining the appropriate sentence, the court considered the lack of...
Source-derived case information.
- Citation
- [2021] KEHC 7002 (KLR)
- Parties
- Petitioner: Josphat Kigorwe Mururu; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Petition 128 of 2018
- Procedural Posture
- Petition Application / Resentencing Ruling
- Outcome
- petition for resentencing allowed; petitioner resentenced to 15 years' imprisonment on each count, sentences to run concurrently from 5th September 2001.
- Judges
- TW Cherere
- Legal Topics
- Robbery With Violence, Mandatory Sentencing, Resentencing, Constitutionality of Death Penalty
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Josphat Kigorwe Mururu
Petitioner
Republic
Respondent
Procedural Posture
Petition Application / Resentencing Ruling
Legal Issues
- 1 Whether the mandatory death sentence for robbery with violence is unconstitutional following the Supreme Court decision in Muruatetu.
- 2 Whether the petitioner is entitled to resentencing in light of the unconstitutionality of the mandatory death sentence.
- 3 What is the appropriate sentence for the petitioner given the circumstances of the offence and the period already served.
Ratio Decidendi
The court found that, although the original sentence of death was lawful at the time, the Supreme Court's decision in Muruatetu rendered the mandatory death sentence unconstitutional. Consequently, the petitioner was entitled to resentencing. In determining the appropriate sentence, the court considered the lack of aggravating circumstances, the absence of harm to the complainants, and the fact that the petitioner had already served 10 years in prison. However, the court also noted that the petitioner had not undertaken any training as a way of reformation. Balancing these factors, the court resentenced the petitioner to 15 years' imprisonment on each of the three counts, to run...
Court Disposition
petition for resentencing allowed; petitioner resentenced to 15 years' imprisonment on each count, sentences to run concurrently from 5th September 2001.
Orders
- The petitioner is resentenced to 15 years' imprisonment in each of the 3 counts with effect from 05th September, 2001.
- The sentences shall run concurrently.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MERU
(CORAM: CHERERE-J)
PETITION APPLICATION NO. 128 OF 2018
BETWEEN
JOSPHAT KIGORWE MURURU........................PETITIONER
AND
REPUBLIC...........................................................RESPONDENT
RULING
Introduction
1) The Petitioner was tried in MERU CRIMINAL CASE NO.1062 OF 2000 for three counts of robbery with violence contrary to section 296(2)of the Penal Code and was on 05th September, 2001 convicted and sentenced to suffer death.
2) Petitioner’s appeal to the High Court vide MERUHIGH COURT CRIMINAL APPEAL NO. 301 OF 2001 was by a judgment dated 29th October, 2010 dismissed, the conviction upheld and sentence confirmed.
3) Applicant has petitioned the court for resentencing. Ms. Mbithe, learned counsel for the state opposed the application and urged the court to find that the sentence was lawful.
Analysis and Determination
4) Whereas I agree with the state that the sentence imposed on the Applicant is lawful, the Supreme Court’s decision in Francis Karioki Muruatetu & Another v Republic & 5 others [2016] eKLR declaring the mandatory death sentence unconstitutional has necessitated resentencing of all persons previously sentenced to the mandatory minimum and maximum sentences.
5) I have considered The Sentencing Policy Guidelines, 2016and its application which is intended to promote transparency, consistency and fairness in sentencing (See Michael Kathewa Laichena & another v Republic [2018] eKLR).
6) The offence was committed by the Petitioner and about 10 others. There is no evidence that the complainants were harmed and other than that the Petitioners were on a robbery spree, the offences were not aggravated.
7) Although Petitioner has served 10 years’ imprisonment, he has not undertaken any training as a way of reformation.
8) In the end, the Petitioner is resentenced to 15 years’ imprisonment in each of the 3 counts with effect from 05th September, 2001 when he was sentenced. The sentences shall run concurrently.
DELIVERED AT MERU THIS 13TH DAY OF MAY 2021
T. W. CHERERE
JUDGE
In the presence of-
Court Assistant - Kinoti
Petitioner - Present in person
For the State - Ms. Mbithe