[2020] KEHC 9240 (KLR)
The court found that, pursuant to the Supreme Court decision in Muruatetu, the mandatory death sentence for murder is unconstitutional, granting the court discretion in sentencing. Upon considering the facts, including the heinous nature of the offence, lack of demonstrated remorse, and the aggravating...
Source-derived case information.
- Citation
- [2020] KEHC 9240 (KLR)
- Parties
- Applicant: Mbu Said; Respondent: Director of Public Prosecutions
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Constitutional Petition 73 of 2018
- Procedural Posture
- Constitutional Petition / Judgment
- Outcome
- Petition partially allowed; death sentence set aside and substituted with 40 years imprisonment from date of arrest.
- Judges
- DO Ogembo
- Legal Topics
- Mandatory Death Sentence, Sentencing Principles, Mitigation of Sentence, Remorse and Rehabilitation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mbu Said
Applicant
Director of Public Prosecutions
Respondent
Procedural Posture
Constitutional Petition / Judgment
Legal Issues
- 1 Whether the mandatory death sentence for murder is unconstitutional following the Supreme Court decision in Muruatetu.
- 2 What is the appropriate sentence for the Petitioner in light of the circumstances and mitigation.
Ratio Decidendi
The court found that, pursuant to the Supreme Court decision in Muruatetu, the mandatory death sentence for murder is unconstitutional, granting the court discretion in sentencing. Upon considering the facts, including the heinous nature of the offence, lack of demonstrated remorse, and the aggravating circumstances, the court determined that the Petitioner deserved a severe sentence. The court was not bound by the original 35-year sentence imposed by the trial court and, exercising its discretion, sentenced the Petitioner to 40 years imprisonment from the date of arrest.
Court Disposition
Petition partially allowed; death sentence set aside and substituted with 40 years imprisonment from date of arrest.
Orders
- The death sentence is set aside.
- The Petitioner is sentenced to forty (40) years imprisonment from the date of arrest.
Full Case Text
Judgment text and source record
22 paragraphs
THE REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MOMBASA
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO. 73 OF 2018
MBUU SAID..................................................................................PETITIONER
VERSUS
THE DIRECTOR OF PUBLIC PROSECUTIONS.................RESPONDENT
JUDGMENT
1. The Petitioner was charged and convicted for the offence of murder in Mombasa Criminal Case No. 10 of 2010. He was sentenced to 35 years in prison, but when he appealed the Court of Appeal enhanced the sentence to death.
2. The Petitioner is now in 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.
3. The Petitioner in mitigation submitted he is a reformed person and that he is remorseful of what he did. He submitted that he be jailed for a period of 15 years including the time he has spent in jail.
4. Mr. Fedha, learned counsel for the prosecution submitted that the Petitioner killed his father in law when his father in law invited him for a discussion of differences between the Petitioner and his wife. When his father in law asked the Petitioner to pay dowry the Petitioner attacked him with a panga and he bled to death. After that the Petitioner boasted to his friends that he had killed the old man. The prosecution submitted that the Petitioner be jailed for 40 years.
5. I have considered those submissions. I note that there is no evidence of remorsefulness by the Petitioner. He committed a heinous act and still does not care. He deserved the severest of sentence. The trial court had jailed him to 35 years which was enhanced to death sentence by the Court of Appeal.
6. In setting aside the death sentence pursuant to the aforesaid Supreme Court decision in Muruatetu, I am not bound by the 35 years given by the trial court. In the circumstances of this case I hereby jail the Petitioner to a term of forty (40) years from the date of arrest.
Right of appeal in 14 days.
Dated, Signed and Delivered at Mombasa this 20th day of January, 2020.
E. K. OGOLA
JUDGE
In the presence of:
Mr. Fedha for DPP
Petitioner in person
Mr. Kaunda Court Assistant