[2019] KEHC 2919 (KLR)
The court found that, following the Supreme Court's decision in Muruatetu, the mandatory aspect of the death sentence for robbery with violence is unconstitutional. The applicant, having been sentenced under this provision, is entitled to a resentencing hearing where the trial court will consider his mitigation and...
Source-derived case information.
- Citation
- [2019] KEHC 2919 (KLR)
- Parties
- Applicant: Madaraka Kasyuko Mwendwa; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Garissa
- Jurisdiction
- Kenya
- Case Number
- Criminal Miscellaneous Application 26 of 2019
- Procedural Posture
- Criminal Miscellaneous Application / Ruling on Application for Resentencing
- Outcome
- Application for resentencing allowed. Death sentence set aside. Matter remitted to Magistrate's Court for resentencing.
- Judges
- CM Kariuki
- Legal Topics
- Robbery With Violence, Mandatory Sentencing, Resentencing, Constitutional Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Madaraka Kasyuko Mwendwa
Applicant
Republic
Respondent
Procedural Posture
Criminal Miscellaneous Application / Ruling on Application for Resentencing
Legal Issues
- 1 Whether the mandatory death sentence for robbery with violence is unconstitutional in light of the Supreme Court decision in Muruatetu.
- 2 Whether the applicant is entitled to resentencing based on the unconstitutionality of the mandatory death sentence.
Ratio Decidendi
The court found that, following the Supreme Court's decision in Muruatetu, the mandatory aspect of the death sentence for robbery with violence is unconstitutional. The applicant, having been sentenced under this provision, is entitled to a resentencing hearing where the trial court will consider his mitigation and the period he has spent in custody. The prosecution did not oppose the application, and the court exercised its discretion to set aside the death sentence and remit the matter to the trial court for resentencing.
Court Disposition
Application for resentencing allowed. Death sentence set aside. Matter remitted to Magistrate's Court for resentencing.
Orders
- The death sentence is set aside.
- The matter is sent back to Magistrate’s Court at Mwingi for resentencing after considering the mitigation of the applicant plus the period he has been in custody since arrest.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT GARISSA
CRIMINAL MISC. APPLICATION NO. 26 OF 2019
MADARAKA KASYUKO MWENDWA................APPLICANT
VERSUS
REPUBLIC.............................................................RESPONDENT
RULING
1. The applicant was charged with offence of robbery with violence contrary to section 296 (2) of the Penal Code.
2. Particulars being that on 31/5/2010 at Mwingi Township, Mwingi District within Eastern Province jointly while armed with crude weapon namely a hammer robbed Catherine Mutethya Wambua off Kshs.10,000/=, a mobile phone Nokia 2630, one handbag, Equity ATM card and a Sony flash disk all valued at Kshs.18,000/= the property of Catherine Mutethya Wambua and at the time of such robbery used personal violence to the said Catherine Mutethya Wambua.
3. He pleaded not guilty and mater was fully heard. He was sentenced to death.
4. He filed HCCRA No. 10 of 2013 in High Court Garissa which was dismissed after same was fully heard.
5. He was first accused in Mwingi Senior Resident Magistrate’s Court Criminal Case No. 547 of 2010. He never appealed against the High Court judgement.
6. He has now sought resentencing pursuit to Supreme Court case of Muruatetu where the Apex Court ruled that the mandatory aspect of death sentence is unconstitutional.
7. The prosecution does not oppose the application for resentencing.
8. In view of the circumstances of this case, I find it fit to make the following orders:
(1) The death sentence is set aside.
(2) The matter is sent back to Magistrate’s Court at Mwingi for resentencing after considering the mitigation of the applicant plus the period he has been in custody since arrest.
DATED, DELIVERED AND SIGNED AT GARISSA THIS 4TH DAY OF OCTOBER, 2019.
……………….………………
C. KARIUKI
JUDGE