[2020] KEHC 10391 (KLR)
The court found that the mandatory death sentence imposed on the petitioner was unconstitutional in light of the Supreme Court's decision in Muruatetu. The petitioner, having been convicted as a juvenile and having served 16 years, demonstrated evidence of reform and remorse. The court also considered the parity...
Source-derived case information.
- Citation
- [2020] KEHC 10391 (KLR)
- Parties
- Petitioner: LMS; Respondent: Director of Public Prosecution
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Petition 121 of 2019
- Procedural Posture
- Constitutional Petition / Resentencing Judgment
- Outcome
- Death sentence set aside; petitioner resentenced to 20 years' imprisonment from date of arrest.
- Judges
- DO Ogembo
- Legal Topics
- Resentencing, Mandatory Death Sentence, Juvenile Offender, Robbery With Violence, Supreme Court Precedent
- 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
LMS
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 following the Supreme Court decision in Francis Karioko Muruatetu & Another v. Republic.
- 2 Whether the petitioner, convicted as a juvenile and having served 16 years, should be resentenced to a determinate term or time served.
Ratio Decidendi
The court found that the mandatory death sentence imposed on the petitioner was unconstitutional in light of the Supreme Court's decision in Muruatetu. The petitioner, having been convicted as a juvenile and having served 16 years, demonstrated evidence of reform and remorse. The court also considered the parity principle, noting that the petitioner's co-accused had been resentenced to 20 years and released. Balancing the seriousness of the offence, the petitioner's age at the time of the offence, the period already served, and the need for justice to both the offender and the victims, the court set aside the death sentence and resentenced the petitioner to 20 years' imprisonment from the...
Court Disposition
Death sentence set aside; petitioner resentenced to 20 years' imprisonment from date of arrest.
Orders
- The death sentence imposed on the petitioner is set aside.
- The petitioner is sentenced to serve a jail term of twenty (20) years from the date of arrest.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MOMBASA
CONSTITUTIONAL AND JUDICIAL REVIEW DIVISION
PETITION NO. 121 OF 2019
LMS..........................................................................................PETITIONER
VERSUS
DIRECTOR OF PUBLIC PROSECUTION .....................RESPONDENT
JUDGMENT ON RESENTENCING
1. The Petitioner herein, LMS was charged and convicted, together with others, with robber with violence contrary to Section 296 (2) of the Penal Code.
2. His Appeal to Court of Appeal was dismissed on 26th February, 2015. The Petitioner is now in this court for resentencing pursuant to the Supreme Court decision in Francis Karioko Muruatetu & Another vs. Republicthat the mandatory nature of the death sentence is unconstitutional.
3. The Petitioner states that he was charged when he was 17 years old and he has been in prison for 16 years now. The Petitioner avers that he has reformed, regrets his past which he blames on his youth, and says he is now a man of God and has learnt Theology. His co-accused William Mronbo Ngima, Jothan Mwauda and Roman Wegenge were all sentenced to 20 years in a Voi Court and they have been released. The court has confirmed this assertion to be true. The three were resentenced in Voi Senior Principal Magistrate’s Court – Criminal Case No. 32/2003 and were sentenced to serve 20 years by Hon. M. Onkoba – PM on 16th July, 2019. The Petitioner submitted that he should be sentenced for the time served, and be set free.
4. Mrs. Balongo, Learned Counsel for the prosecution submitted that the Petitioner be jailed for 35 years because he is a constant danger to society.
5. I have considered these submissions. The purpose of sentencing is to achieve parity in justice. It is a process also through which an offender is granted time to reflect upon his or her conduct, and to reform. It also serves as retribution so that the victim is also vindicated.
6. The Petitioner was involved in robbery, and used offensive weapons and cut and beat the victims. That is not an acceptable conduct. However, this court considers that the Petitioner has served 16 years in jail. To atone for his conduct, the court hereby sets aside the death sentence meted on the Petitioner by the trial court.
7. In place thereof, the Petitioner is hereby sentenced to serve a jail term of twenty (20) years from the date of arrest. Right of appeal in 14 days.
That is the Judgment of the Court.
Dated, Signed and Delivered at Mombasa this 15th day of December, 2020.
E. K. OGOLA
JUDGE
In the presence of:
Petitioner in person via video link
M/S Fedha for DPP
Ms. Peris Court Assistant