[2020] KEHC 7104 (KLR)
The court found that the mandatory death sentence imposed on the petitioner, who was a minor at the time of the offence, was unconstitutional following the Supreme Court decision in Muruatetu. However, given the petitioner is now an adult, committal to a Borstol Institution is no longer possible. The court...
Source-derived case information.
- Citation
- [2020] KEHC 7104 (KLR)
- Parties
- Petitioner: MMM; Respondent: Director of Public Prosecutions
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Petition 30A of 2018
- Procedural Posture
- Constitutional Petition / Resentencing After Conviction and Supreme Court Decision
- Outcome
- Death sentence set aside; petitioner resentenced to 35 years imprisonment from date of arrest.
- Judges
- DO Ogembo
- Legal Topics
- Mandatory Death Sentence, Juvenile Justice, Resentencing Principles, Children Rights, Murder Offences
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
MMM
Petitioner
Director of Public Prosecutions
Respondent
Procedural Posture
Constitutional Petition / Resentencing After Conviction and Supreme Court Decision
Legal Issues
- 1 Whether the mandatory death sentence imposed on a minor is unconstitutional following the Supreme Court decision in Muruatetu.
- 2 Whether the petitioner, having been a minor at the time of the offence, should have been sentenced to a Borstol Institution under the Children’s Act.
- 3 What is the appropriate sentence for the petitioner in light of his age at the time of the offence and the circumstances of the case.
Ratio Decidendi
The court found that the mandatory death sentence imposed on the petitioner, who was a minor at the time of the offence, was unconstitutional following the Supreme Court decision in Muruatetu. However, given the petitioner is now an adult, committal to a Borstol Institution is no longer possible. The court considered the gravity of the offence—defilement and murder of a 5-year-old girl—and the petitioner’s age at the time. Balancing these factors, the court set aside the death sentence and imposed a determinate prison term of 35 years from the date of arrest, holding that the petitioner must serve the remainder of his sentence in prison as he is now an adult. The court declined to release...
Court Disposition
Death sentence set aside; petitioner resentenced to 35 years imprisonment from date of arrest.
Orders
- The death sentence is set aside.
- The petitioner is sentenced to serve 35 years imprisonment from the date of arrest.
Full Case Text
Judgment text and source record
24 paragraphs
THE REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO. 30A OF 2018
MMM...............................................................................PETITIONER
VERSUS
THE DIRECTOR OF PUBLIC PROSECUTIONS....RESPONDENT
JUDGMENT
1. The Petitioner herein was a minor aged about 16 years when he was arraigned before the trial court and charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. The particulars are that on 7/11/2012 in Lamu County, he murdered SW. The matter proceeded and the Petitioner was convicted and sentenced to death in High Court Criminal Case Number 29 of 2012.
2. The Petitioner is now in this court for resentencing pursuant to the decision of the Supreme Court in Francis Karioko Muruatetu & Another vs. Republic [2017] eKLRwhere the court declared unconstitutional the mandatory nature of the death sentence.
3. Mr. Fedha, learned counsel for the prosecution submitted that the Petitioner although 16 years old at the time the offence was committed, nevertheless defiled and murdered an innocent girl aged 5 years. Counsel submitted that the life of the innocent girl cries out for redemption and that the Petitioner should be jailed to serve 45 years in jail including the 7 years already served.
4. On his part the Petitioner submitted that he was only 16 years old when he was arrested, and that under Section 191 of the Children’s Act he ought to have been sentenced to a Borstol Institution, but instead he was jailed together with adults. This was a violation of his right which should be vindicated by this court. The Petitioner, who is now 23 years, submitted that the 7 years he has served in prison is adequate punishment and that he should be allowed to go home to his sister since he had also lost his parents.
5. I have carefully considered the circumstances of the case. The deceased was a girl aged 5 years by the time she was murdered. The Petitioner was 16 years when he was arraigned in court for the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. The deceased’s body was dumped into a shamba at the home of the Petitioner. It was found naked and lying face down. She had been sexually molested and sustained severe injuries to her private parts. Her neck was broken and the cause of death was established to be cardiorespiratory arrest following asphyxiation. A 16 year old boy was old enough to know that it was unlawful to sexually defile and murder a defenseless girl of 5 years. This offence was proved, and the Petitioner convicted.
6. Further, although the Petitioner was 16 years when he committed the offence, he is now 23 years. This court cannot now send him to a Borstol Institution because he is now an adult. Again this court cannot release him into the society because he has been found guilty of murder. Since he is now an adult, he will have to spend the rest of the sentence in prison.
7. I hereby now set aside the death sentence and in place thereof I sentence the Petitioner to serve a prison term of 35 years from the date of arrest.
8. The right of appeal in 14 days.
Dated, Signed and Delivered at Mombasa this 30th day of March, 2020.
E. K. O. OGOLA
JUDGE
In the presence of:
Ms. Mwangeka for DPP
Petitioner in person via video link
Mr. Kaunda Court Assistant