[2019] KEHC 11628 (KLR)
The court found that while robbery with violence is a grave offence warranting serious punishment, the petitioner had already served 22 years in prison, demonstrated remorse, maintained a good record, and suffered from significant health issues including near blindness. The Probation and Social Reports indicated he...
Source-derived case information.
- Citation
- [2019] KEHC 11628 (KLR)
- Parties
- Petitioner: Michael J. Obwoka; Respondent: Director of Public Prosecution
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Constitutional Petition 65 of 2018
- Procedural Posture
- Constitutional Petition / Judgment
- Outcome
- petition allowed
- 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
Michael J. Obwoka
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 Whether the period already served by the petitioner is sufficient punishment for the offence of robbery with violence.
- 3 Whether the petitioner's health and rehabilitation justify his release.
Ratio Decidendi
The court found that while robbery with violence is a grave offence warranting serious punishment, the petitioner had already served 22 years in prison, demonstrated remorse, maintained a good record, and suffered from significant health issues including near blindness. The Probation and Social Reports indicated he was not a risk to society. In light of the Supreme Court's guidance in Muruatetu and the petitioner's circumstances, the court held that the period already served was sufficient punishment and ordered his immediate release unless held for other lawful reasons.
Court Disposition
petition allowed
Orders
- The petitioner is sentenced to the term already served.
- The petitioner is forthwith released and set free unless held for valid reasons.
Full Case Text
Judgment text and source record
34 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MOMBASA
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO. 65 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
MICHAEL J. OBWOKA..............................................PETITIONER
VERSUS
DIRECTOR OF PUBLIC PROSECUTION….........RESPONDENT
JUDGMENT
1. The Petitioner herein seeks a resentensing 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. 2353 of 1997. He was sentenced to death and has been in jail for 22 years. The Petitioner was involved in robbery with violence where two victims a couple together with their daughter were stopped and forced to drive in an alternate route and later forced out of their vehicle. Their daughter was then kidnapped but after investigation the vehicle was recovered and the daughter was found. The daughter had been used as a shield to demand for ransoms. The Petitioner robbed a motor vehicle with a knife. He also used a home made bomb which he threatened them with.
3. The prosecution calls for a stiffer sentence of a total of 23 years to deter the offence.
4. The Petitioner submits that the 22 years he has done in jail is enough punishment and that he should be released since he is 62 years old and is married with 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 62 years. He has a good record in prison.
6. The Petitioner is remorseful of his past. He did not cause any bodily harm to the victims. He states that he has reformed. The Petitioner is a sick man. He has lost the function of one of his eyes, while the remaining one has lot 50% functionality. He is therefore a dependant.
7. The Probation Report filed in Court on 24th June, 2019 is favourable to the Petitioner, and proposes that he be released back to society, and that he is not a risk to society.
8. I have carefully considered the submissions. The Petitioner has served 22 years in prison. He is almost blind. He submits that he has reformed and is ready to join society.
9. The Social Report about him indicates a person who is now, due to his ailment, a little risk to society. A robbery with violence is a serious offence and should be properly punished. However, in the circumstance of this case, and with the ailment suffered by the Petitioner, it is prudent to release the Petitioner so that he can seek adequate treatment outside.
10. Accordingly, the Petitioner is sentenced to the term already served, and is herewith forthwith released and set free unless held for valid reasons.
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
Mr. Kaunda Court Assistant