[2019] KEHC 4832 (KLR)
The court held that while the petitioner was entitled to resentencing following the Supreme Court's decision in Muruatetu, the gravity of the offence—robbery with violence involving a substantial monetary loss and injury to the victim—required a significant custodial sentence. The court considered the petitioner's...
Source-derived case information.
- Citation
- [2019] KEHC 4832 (KLR)
- Parties
- Petitioner: Mdoe Chaka Mdoe; Respondent: Director of Public Prosecution
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Petition 78 of 2018
- Procedural Posture
- Constitutional Petition / Judgment
- Outcome
- petition partially allowed; resentencing granted
- Judges
- DO Ogembo
- Legal Topics
- Resentencing, Mandatory Death Sentence, Fundamental Rights, Robbery With Violence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mdoe Chaka Mdoe
Petitioner
Director of Public Prosecution
Respondent
Procedural Posture
Constitutional Petition / Judgment
Legal Issues
- 1 Whether the petitioner is entitled to resentencing following the Supreme Court decision in Francis Karioko Muruatetu v. Republic.
- 2 What is the appropriate sentence for the petitioner given the circumstances of the offence and time already served.
Ratio Decidendi
The court held that while the petitioner was entitled to resentencing following the Supreme Court's decision in Muruatetu, the gravity of the offence—robbery with violence involving a substantial monetary loss and injury to the victim—required a significant custodial sentence. The court considered the petitioner's age, good prison record, and skills acquired while incarcerated but determined that further imprisonment was necessary to serve the objectives of punishment, particularly deterrence. The court thus resentenced the petitioner to 20 years' imprisonment, inclusive of time already served.
Court Disposition
petition partially allowed; resentencing granted
Orders
- The petitioner is resentenced to 20 years in prison, including time already served.
- The petitioner has the right of appeal within 14 days.
Full Case Text
Judgment text and source record
35 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO. 78 OF 2018
IN THE MATTER OF: THE CONSTITUTION OF KENYA 2010
(SUPERVISORY JURISDICTION AND PROTECTION OF FUNDAMENTAL
RIGHTS AND FREEDOM OF AN INDIVIDUAL) HIGH COURT
PRACTICE AND PROCEDURE RULES 2013
AND
IN THE MATTER: OF: ARTICLE 22(1) OF THE CONSTITUTION
AND
IN THE MATTER OF: ARTICLE 23(1) OF THE CONSTITUTION
AND
IN THE MATTER OF: ARTICLES 19, 20, 21, 22, 23, 24, 25,
27, 28,48, 50, 258 AND 259 OF THE CONSTITUTION
BETWEEN
MDOE CHAKA MDOE....................................................................PETITIONER
VERSUS
DIRECTOR OF PUBLIC PROSECUTION..................................RESPONDENT
JUDGMENT
1. The Petitioner herein seeks a resentencing pursuant to the Supreme Court decision in Francis Karioko Muruatetu vs. Republic [2017] eKLR.
2. The Petitioner was tried and convicted of robbery with violence in the Mombasa Chief Magistrate Court Criminal Case No. 2577 of 2002. He was sentenced to suffer death, and failed in all his appeals. The Petitioner was involved in gang robbery. His co-perpetrators were never arrested. Kshs. 1,000,000/= was lost in the process and the victim was injured. The Petitioner has now served 16 years in jail.
3. The prosecution calls for a stiffer sentence of a total of 26 years to deter the offence.
4. The Petitioner submits that the 16 years he has done in jail is enough punishment and that he should be released since he is already 60 years old and is married with 6 children.
5. I have carefully considered the issue at hand. The aim of punishment is retribution, rehabilitation and reformation. The offence which was committed by the Petitioner is grave and should be properly punished. The Petitioner is now 59 years. He has a good record in prison and has also learnt trade of painting. In my view the Petitioner needs to serve more time in jail to send a strong warning to would be offenders that crime does not pay.
6. Accordingly, I herewith sentence the Petitioner to 20 years in prison including the time already served.
7. The Petitioner has the right of appeal within 14 days.
That is the Judgment of the Court.
Dated, Signed and Delivered at Mombasa this 30th day of July, 2019.
E. K. OGOLA
JUDGE
In the presence of:
Mr. Fedha for DPP
Petitioner in person