[2020] KEHC 810 (KLR)
The court held that, following the Supreme Court’s decision in Muruatetu, the mandatory nature of the life sentence for robbery with violence is unconstitutional. The court exercised its discretion to resentence the petitioner, taking into account the period already served and the parity principle, as the...
Source-derived case information.
- Citation
- [2020] KEHC 810 (KLR)
- Parties
- Applicant: Matheka Kithome Ngomo; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Petition 193 of 2018
- Procedural Posture
- Petition / Resentencing Judgment
- Outcome
- petition allowed; petitioner resentenced to period served and released
- Judges
- DO Ogembo
- Legal Topics
- Resentencing, Robbery With Violence, Mandatory Sentencing, Constitutionality of Penal Code, Supreme Court Guidelines
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Matheka Kithome Ngomo
Applicant
Republic
Respondent
Procedural Posture
Petition / Resentencing Judgment
Legal Issues
- 1 Whether the mandatory life 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 time already served and parity with co-accused.
Ratio Decidendi
The court held that, following the Supreme Court’s decision in Muruatetu, the mandatory nature of the life sentence for robbery with violence is unconstitutional. The court exercised its discretion to resentence the petitioner, taking into account the period already served and the parity principle, as the petitioner’s co-accused had been sentenced to 17 years and released. The petitioner, having served 19 years, was resentenced to the period already served and ordered to be released forthwith unless otherwise lawfully held.
Court Disposition
petition allowed; petitioner resentenced to period served and released
Orders
- The petitioner is resentenced to 19 years imprisonment, which he has already served.
- The petitioner is to be released from prison forthwith unless otherwise lawfully held.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
PETITION NO. 193 OF 2018
MATHEKA KITHOME NGOMO...............................................................PETITIONER
VERSUS
REPUBLIC..................................................................................................RESPONDENT
JUDGMENT ON RESENTENCING
1. The Petitioner herein, Matheka Kithome Ngomo was charged and convicted, together with others, with the offence of Robbery with Violence contrary to Section 296 (2)of thePenal code.
2. The particulars of the offence were that on the night of 18th August 2002, at around 1. 00am, the Petitioner jointly with others not before court armed with dangerous weapons namely iron bars and pangas, proceeded to brake inside the premises of the Complainant and stole a radio cassette, speakers, a watch and a mobile phone belonging to Simon Mutua Kitulya. The Petitioner and the others had dangerous weapons which they used to threaten some of the complainant’s workers on the night of the robbery.
3. The Petitioner was tried and convicted and jailed to life imprisonment.
4. The Petitioner is now in this court for purpose of resentencing pursuant to the Supreme Court decision in Francis Karioko Muruatetu & Another vs. Republic[2017]eKLR,in which the apex court found that the mandatory nature of the death sentence was unconstitutional and struck down Section 204 of the Penal Code to the extent that it prescribed mandatory death sentence upon conviction for murder.
5. It is for this reason that I take the jurisdiction to re-consider the sentence on the Petitioner herein following the Muruatetu Case.
6. Mr. Fedha, Learned Counsel for the DPP submitted that the Petitioner’s co-accused was jailed for 17 years and has been set free. He avers that the same position should apply herein and that the Petitioner should be set fee.
7. Pursuant to the submissions of the prosecution, I hereby jail the Petitioner to 19 years which he has already served with the result that he is forthwithreleased from prison unless lawfully held.
That is the Judgment of the Court.
Dated, Signed and Delivered at Mombasa this 15th day of December, 2020.
E. K. OGOLA
JUDGE
Judgment delivered in chambers via MS Teams in the presence of:
Mr. Fedha for State
Petitioner in person
Ms. Peris Court Assistant
Note:
In view of the declaration of measures restricting court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship the Chief Justice on 15th March 2020, this Judgment has been delivered to the parties online with their consent. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules which requires that all Judgments and Rulings be pronounced in open Court.
E. K. OGOLA
JUDGE