[2020] KEHC 9271 (KLR)
The court found that, following the Supreme Court's decision in Muruatetu, the mandatory death sentence imposed on the petitioner was unconstitutional. The court considered the petitioner's mitigation, the prosecution's submissions, and the favorable Social Inquiry Report, which recommended reintegration into the...
Source-derived case information.
- Citation
- [2020] KEHC 9271 (KLR)
- Parties
- Petitioner: Kazungu Kahindi; Respondent: The Director of Public Prosecutions
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Petition 52 of 2018
- Procedural Posture
- Constitutional Petition / Resentencing After Conviction and Appeal
- Outcome
- Death sentence set aside; petitioner resentenced to 24 years imprisonment from date of arrest and released forthwith as sentence already served.
- Judges
- DO Ogembo
- Legal Topics
- Mandatory Death Sentence, Resentencing, Robbery With Violence, Mitigation, Supreme Court Precedent
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kazungu Kahindi
Petitioner
The Director of Public Prosecutions
Respondent
Procedural Posture
Constitutional Petition / Resentencing After Conviction and Appeal
Legal Issues
- 1 Whether the mandatory death sentence imposed under Section 296(2) of the Penal Code is unconstitutional following the Supreme Court decision in Muruatetu.
- 2 Whether the petitioner is entitled to resentencing and if so, what sentence is appropriate given the circumstances.
Ratio Decidendi
The court found that, following the Supreme Court's decision in Muruatetu, the mandatory death sentence imposed on the petitioner was unconstitutional. The court considered the petitioner's mitigation, the prosecution's submissions, and the favorable Social Inquiry Report, which recommended reintegration into the community. Given that the petitioner had already served 24 years in prison, the court held that he had sufficiently paid for his crime. The death sentence was set aside and substituted with a custodial sentence of 24 years from the date of arrest, resulting in the petitioner's immediate release as he had already served the full term.
Court Disposition
Death sentence set aside; petitioner resentenced to 24 years imprisonment from date of arrest and released forthwith as sentence already served.
Orders
- The death sentence imposed by the trial court is set aside.
- The petitioner is sentenced to 24 years imprisonment from the date of arrest.
Full Case Text
Judgment text and source record
24 paragraphs
THE REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MOMBASA
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO. 52 OF 2018
KAZUNGU KAHINDI............................................................................. PETITIONER
VERSUS
THE DIRECTOR OF PUBLIC PROSECUTIONS.............................RESPONDENT
JUDGMENT
1. The Petitioner herein was charged and convicted for the offence of robbery with violence contrary to Section 296(2) of the Penal Code. The particulars beign that on 15/12/1995 at about 10 p.m. in Kisauni, Mombasa violently robbed James Kyule of Kshs. 30,000/= and immediately after injured him using a machete (panga) inflicting severe injuries on the face and hands.
2. The matter proceeded and the accused was convicted and sentenced to death by the trial court in Criminal Case No. 4689/1995.
3. Being aggrieved by the conviction and sentence the Petitioner appealed to the Court of Appeal at Mombasa in Criminal Appeal No. 97 of 1999. The said appeal was dismissed.
4. The Petitioner is now in this court for resentencing pursuant to the Supreme court decision in Francis Karioko Muruatetu & Another vs. Republic [2017] eKLRin which the apex court declared the mandatory nature of the death sentence unconstitutional.
5. Mr. Fedha, learned counsel for the prosecution submitted that the Petitioner attacked the complainant armed with a panga and injured the complainant’s hand. He used force to steal the day’s collection from the victim and that he should be jailed for 28 years including the 24 years he has served in jail.
6. On his part the Petitioner submitted that the has reformed and shuns crime and that he should be jailed for the 24 years he has already served in jail.
7. I have considered the Petitioner’s mitigation and prosecution’s submissions. I have also considered the Social Inquiry Report filed here on 6/9/2019 which speaks well of the Petitioner and recommends that he be given a second chance in the community. Be that as it may I think the Petitioner has paid for his crime for the 24 years he has been in jail. I therefore hereby set aside the death sentence given to the Petitioner by the trial court, and in place thereof I sentence the Petitioner to serve a jail term of 24 years from the date of arrest.
8. Since the Petitioner has already served the said 24 years, he is hereby forthwith released to freedom unless lawfully withheld.
9. Right of appeal in 14 days.
Dated, Signed and Delivered at Mombasa this 30th day of January, 2020
E. K. O. OGOLA
JUDGE
In the presence of:
Mr. Fedha for DPP
Petitioner in person
Mr. Kaunda Court Assistant