[2021] KEHC 7690 (KLR)
The court found that, following the Supreme Court's decision in Muruatetu, the mandatory death sentence previously imposed on the petitioner for robbery with violence was unconstitutional. The court considered the circumstances of the offence, noting that although the petitioner and others were armed, the firearm...
Source-derived case information.
- Citation
- [2021] KEHC 7690 (KLR)
- Parties
- Petitioner: Martin Kirimi Mugambi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Criminal Petition 137 of 2018
- Procedural Posture
- Petition Application / Resentencing Application After Conviction and Dismissal of Appeals
- Outcome
- petition for resentencing allowed; petitioner resentenced to period already served
- Judges
- TW Cherere
- Legal Topics
- Resentencing, Mandatory Death Sentence, Robbery With Violence, Constitutional Rights, Sentencing Guidelines
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Martin Kirimi Mugambi
Petitioner
Republic
Respondent
Procedural Posture
Petition Application / Resentencing Application After Conviction and Dismissal of Appeals
Legal Issues
- 1 Whether the mandatory death sentence imposed on the petitioner for robbery with violence is unconstitutional in light of the Supreme Court decision in Francis Karioki Muruatetu & Another v Republic.
- 2 Whether the petitioner is entitled to resentencing and if so, what sentence is appropriate.
Ratio Decidendi
The court found that, following the Supreme Court's decision in Muruatetu, the mandatory death sentence previously imposed on the petitioner for robbery with violence was unconstitutional. The court considered the circumstances of the offence, noting that although the petitioner and others were armed, the firearm was not used to inflict injuries and the offence was not aggravated. The petitioner had demonstrated reformation by undertaking vocational training while in custody. Taking into account the period of 16 years already served, and applying the Sentencing Policy Guidelines and section 333(2) of the Criminal Procedure Code, the court held that the appropriate sentence was the period...
Court Disposition
petition for resentencing allowed; petitioner resentenced to period already served
Orders
- The petitioner is resentenced to the period already served.
- The petitioner shall be set at liberty unless otherwise lawfully held.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MERU
(CORAM: CHERERE-J)
PETITION APPLICATION NO. 137 OF 2018
BETWEEN
MARTIN KIRIMI MUGAMBI..........................................PETITIONER
AND
REPUBLIC..........................................................................RESPONDENT
RULING
Introduction
1. The Petitioner was tried for robbery with violence in MERU CRIMINAL CASE NO.2855 OF 2005, was convicted and sentenced to suffer death for the offence of robbery with violence contrary to section 296(2) of the Penal Code.
2. Applicant’s appeals to the High Court vide MERUHIGH COURT CRIMINAL APPEAL NO. 201 OF 2008and subsequently to the Court of Appeal vide NYERICRIMINAL APPEAL NO. 334 OF 2013 were dismissed on 12th July, 2012 and 13th November, 2013 respectively as a result of which the conviction was 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] eKLRdeclaring 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 others. There is evidence that the gang was armed with a firearm but the same was not used to inflict injuries on the complainant.
7. I have considered that the offence was not aggravated and the Petitioner has as a way of reformation undertaken training in Carpentry and has attained Grade 1. I am therefore persuaded that this is a proper case for resentence.
8. Under the proviso to section 333(2) of the Criminal Procedure Code (Chapter 75 of the Laws of Kenya), the court is entitled to take into account the period the Applicant has spent in custody in determining the sentence.
9. The court record shows that the Petitioner was charged in 2005 and has been in custody since then which is a period of 16 years and I have no doubt that he has had time to reflect on his actions.
10. Consequently, the Petitioner is resentenced to period already served.It is hereby ordered that he be set at liberty unless otherwise lawfully held.
DELIVERED AT MERU THIS 22nd DAY OFApril 2021
T. W. CHERERE
JUDGE
In the presence of-
Court Assistant- Kinoti
Petitioner- Present
For the State- Ms. Mbithe