[2020] KEHC 8149 (KLR)
The court found that, following the Supreme Court's decision in Muruatetu, the mandatory death sentence imposed on the applicant for robbery with violence under section 296(2) of the Penal Code is unconstitutional. Since the applicant's appeal had been dismissed and his notice of appeal to the Court of Appeal was...
Source-derived case information.
- Citation
- [2020] KEHC 8149 (KLR)
- Parties
- Applicant: Mohamed Adan Hussein; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Garissa
- Jurisdiction
- Kenya
- Case Number
- Criminal Miscellaneous Application 58 of 2019
- Procedural Posture
- Criminal Miscellaneous Application / Resentencing Application After Conviction and Appeal
- Outcome
- application_allowed
- Judges
- CM Kariuki
- Legal Topics
- Robbery With Violence, Mandatory Sentencing, Resentencing, Unconstitutionality of Death Penalty
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mohamed Adan Hussein
Applicant
Republic
Respondent
Procedural Posture
Criminal Miscellaneous Application / Resentencing Application After Conviction and Appeal
Legal Issues
- 1 Whether the mandatory death sentence imposed for robbery with violence under section 296(2) of the Penal Code is unconstitutional in light of the Supreme Court decision in Muruatetu.
- 2 Whether the applicant is entitled to resentencing following the withdrawal of his notice of appeal.
Ratio Decidendi
The court found that, following the Supreme Court's decision in Muruatetu, the mandatory death sentence imposed on the applicant for robbery with violence under section 296(2) of the Penal Code is unconstitutional. Since the applicant's appeal had been dismissed and his notice of appeal to the Court of Appeal was withdrawn, there was no pending appeal. The court held that the applicant is entitled to resentencing, and the appropriate course is to set aside the death sentence and refer the matter back to the trial court for sentencing after considering mitigation. The prosecution's lack of opposition to the application further supported this outcome.
Court Disposition
application_allowed
Orders
- The death sentence awarded to the applicant in Mandera SPMCRC No. 284 of 2013 on 13/11/2013 is set aside.
- The matter is referred back to the trial court in Mandera for sentencing after considering mitigations.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT GARISSA
CRIMINAL MISC. APPLICATION NO. 58 OF 2019
MOHAMED ADAN HUSSEIN.....................................APPLICANT
VERSUS
REPUBLIC..................................................................RESPONDENT
RULING
1. The applicant was convicted and sentenced to death by the Lower Court for the offence of robbery with violence contrary to section 296(2) of the Penal Code Cap 63 Laws of Kenya.
2. Particulars being that on 14/9/2013 in Mandera township, Mandera East District of Mandera County jointly with others not before court, being armed with dangerous weapon namely Somali sword robbed Abdiaziz Mohamed Aden of his mobile phone make Nokia 1280 valued at Kshs.2,000/= and immediately at the said robbery stabbed said victim.
3. After conviction and sentence the applicant lodged High Court Criminal Appeal No. 3 of 2014 before High Court at Garissa. After same was heard the appeal was dismissed on 18/9/2014.
4. He lodged a notice of appeal with intention to appeal to Court of Appeal but by letter of 6/11/2018 received on 15/11/2019 he withdrew the notice thus no appeal pending.
5. He now seeks the resentencing courtesy of the Supreme Court case of Muruatetu Petition No. 15 and 16 of 2015 delivered on 14/12/2017 which held that mandatory death sentence is unconstitutional.
6. The prosecution does not oppose the application thus the court makes the following orders:
(i) The death sentence awarded to the applicant in Mandera SPMCRC No. 284 of 2013 on 13/11/2013 is set aside.
(ii) The matter is referred back to the trial court in Mandera for sentencing after considering mitigations.
DATED, DELIVERED AND SIGNED AT GARISSA THIS 19TH DAY OF FEBRUARY, 2020.
.......................
C. KARIUKI
JUDGE