[2020] KEHC 6983 (KLR)
The court found that, following the Supreme Court's decision in Muruatetu, the mandatory death sentence imposed on the petitioner for robbery with violence was unconstitutional. The court considered the gravity of the offence, the submissions of both parties, the period already served by the petitioner (9 years),...
Source-derived case information.
- Citation
- [2020] KEHC 6983 (KLR)
- Parties
- Petitioner: Mbovu Nyamawi Mgandi; Respondent: The Director of Public Prosecutions
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Petition 153 of 2018
- Procedural Posture
- Constitutional Petition / Judgment
- Outcome
- death sentence set aside; custodial sentence imposed
- Judges
- DO Ogembo
- Legal Topics
- Mandatory Sentencing, Death Penalty, Sentencing Review, Robbery With Violence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mbovu Nyamawi Mgandi
Petitioner
The Director of Public Prosecutions
Respondent
Procedural Posture
Constitutional Petition / Judgment
Legal Issues
- 1 Whether the mandatory death sentence for robbery with violence under Section 296(2) of the Penal Code is unconstitutional in light of the Supreme Court decision in Francis Karioko Muruatetu & Another vs. Republic.
- 2 Whether the petitioner is entitled to resentencing following the declaration of unconstitutionality of the mandatory death penalty.
Ratio Decidendi
The court found that, following the Supreme Court's decision in Muruatetu, the mandatory death sentence imposed on the petitioner for robbery with violence was unconstitutional. The court considered the gravity of the offence, the submissions of both parties, the period already served by the petitioner (9 years), and evidence of remorse. Exercising its discretion, the court set aside the death sentence and substituted it with a custodial sentence of 13 years imprisonment from the date of arrest, holding that this was a just and proportionate punishment in the circumstances.
Court Disposition
death sentence set aside; custodial sentence imposed
Orders
- The death sentence imposed on the petitioner is set aside.
- The petitioner is sentenced to serve 13 years imprisonment from the date of arrest.
Full Case Text
Judgment text and source record
23 paragraphs
THE REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO. 153 OF 2018
MBOVU NYAMAWI MGANDI................................... PETITIONER
VERSUS
THE DIRECTOR OF PUBLIC PROSECUTIONS....RESPONDENT
JUDGMENT
1. The Petitioner Mbovu Nyamawi Mgandi was charged and convicted for the offence of robbery with violence contrary to Section 296 (2) of the Penal Code. He was sentenced to death.
2. The particulars of the charge were that on the 29/10/2010 at Shimanya village in Kwale County within Coast Region, jointly with others not in court, robbed Nicodemus Kalugo Jonathan a motor bike make Sanlg valued at Kshs. 54,165/= and at or immediately before or immediately after the time of such robbery threatened to use actual violence against the said Nicodemus Kalugo Jonathan.
3. The Petitioner lost his appeal to the High Court and is now before this court pursuant to the Supreme Court decision in Francis Karioko Muruatetu & Another vs. Republic [2017] eKLRin which the apex court found the mandatory nature of the death sentence to be unconstitutional.
4. Ms. Mutua, learned Counsel for the State submitted that this court can review the sentence herein and substitute the death sentence with a term in prison. Counsel submitted that the offence committed was so grave and that it should be punished by 15 years in jail.
5. On his part the Petitioner agreed with the submission by the State that 15 years would be adequate.
6. The Petitioner has now served 9 years in jail. This court finds that the Petitioner is remorseful and has learnt his mistake. I hereby now set aside the death sentence imposed upon the Petitioner by the trial court. In place thereof I jail the Petitioner to serve 13 years in prison from the date of arrest.
7. Right of appeal in 14 days.
Dated, Signed and Delivered at Mombasa this 9th day of April, 2020.
E. K. O. OGOLA
JUDGE
In the presence of:
Ms. Mwangeka for DPP
Petitioner in person via video link
Mr. Kaunda Court Assistant