[2022] KEHC 2273 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT GARSEN

HCCRA NO. 56 OF 2019

MOHAMED HUSSEIN SALAT…………………………………..APPELLANT

VS

REPUBLIC……………………………………………………..…RESPONDENT

(Being an appeal against the conviction and sentence from the

Original Lamu Criminal Case No. 70 of 2018 in a judgment delivered

on 19th November, 2018 by Hon. T.A.Sitati – Senior Resident Magistrate)

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CORAM: Hon. Justice S.M.Githinji

Mr Mwangi for the state

Appellant in person

J U D G E M E N T

MOHAMED HUSSEIN SALAT alias AMALEI, was charged in the Lower Court with the offence of attempted robbery with violence, Contrary to Section 297 (2) of the Penal Code.

The particulars of this offence being that on the 28th day of January 2018 at around 20. 30 hours at Pambaroe area of Lamu West Sub-County, within Lamu County, the appellant jointly with others not before court while armed with offensive weapon namely a panga, attempted to rob Hussein Mamoud Waticho his mobile phone and during the time of such attempted robbery used actual violence to the said Hussein Mahmoud Waticho.

The prosecution case is that on 28. 1.2018 at 7. 30 p.m. the complainant in this case who gave evidence as PW1 completed his days’ work at Mangrove Hotel where he works as a chef. His brother who gave evidence as PW3 had left his place of work at Shella Beach and headed to Mangrove Hotel to meet Pw1 so as to walk home together. The two met and headed home using Pamba Roho route. At around Pamba Roho, PW3 expressed that he need get to a shop to buy flour, sugar and oil. He parted from PW1 and diverted into a shop to do so.

PW1 walked slowly ahead to allow PW3 catch up with him. He got to a place where on both sides of the road were homesteads with a fenced compound. On his right side there were Mango trees. Suddenly, two men emerged from behind the said trees. The men were close to PW1 and he stood still. He saw them using his mobile phone torch light. There was also ample light ahead supplied by a solar street light erected by the County Government. The said light was about 10 metres ahead and had 4 bright bulbs. Of the two men, one had a balaclava on his face and only the eyes could be seen. The other had no hood. One was in a black T-shirts and trouser, while the other was in a T-Shirt. The one in a black T-shirt is the one who had no face hood and PW1 recognized him as Mohamed Hussein, aka-Amalei. Amalei ordered his accomplice to grab PW1’s cell phone. He as well ordered him to empty the pockets. Amalei had a panga and his accomplice had a stick and a panga. Pw1 stepped back two steps very fast while facing his assailants. Amalei attacked him with the panga and cut him on the right side of the head. This prompted PW1 to fall down towards the fence. Pw1 picked up a stick and scared the assailants with it. Two more men joined the assailants. Amalei had dodged the stick strike by the complainant and availed a chance to the complainant to escape. Pw1 escaped through an opening in the fence and went to the homestead on the right side to seek help. He shouted for help as he run toward the said house while still bleeding profusely from the inflicted cut wound. He fell down at the door step to the main house. Two of the assailants pursued him there. PW1 however passed out at the place.

Pw3 had heard some screams and shouts from the direction Pw1 had gone. He rushed to help. He found Pw1 had been injured and was bleeding from the head and the palms. Amalei the appellant herein, was at the scene near a security light. Amalei saw PW3 picking a stick to attack him, and he fled from the scene. He took away the complainant’s shoes as he fled. There were other assailants whose faces were hooded. However, Amalei was not wearing a hood. Some other persons turned up to help. Amalei was in a red shirt and black trousers. The security lights enabled Pw3 to see him clearly.

Amalei was well known to Pw3 as they grew up in the same area, that is, Lamu Island. His real name is indicated as Hussein Salat.

The matter was reported at Lamu Police Station while the complainant was taken to Kiyo Fahd Hospital for treatment. The P 3 was filled. The history is that he was attacked by 4 men, one of them being Amalei. He had a deep cut wound of approximately 3 cm in length which exposed the skull. He had bled profusely.

The left index finger had a cut wound and the forearms were swollen. The complainant said the arm injuries were as he penetrated the fence opening hurriedly so as to escape. He was treated and the degree of injury assessed as harm. The P 3 form was filled on 1. 2.2018.

Later, as the complainant was pursuing on this matter at the Police Station he saw the appellant within the compound where he was engaged in a verbal quarrel with another. The man he was quarrelling with dragged him to the police station to report. The complainant informed P.C Salim that the appellant was the suspect in his case. P.C Salim arrested him.

Upon conclusion of the investigation he was charged with the offence in the charge sheet.

The appellant gave sworn statement in his defence. He stated that he lives at Kashmir-Lamu and is a security guard.

On 28. 1.2018 he was in Lamu. He met the complainant in this case and they quarreled over some plots. They had together benefited from some plots given by the County Government to members of the public. However, the person who had the title to the given land threatened to evict them. Those who had more than one plot agreed to give back and retain one.

However, the accused refused to surrender one of his two plots as was suggested to him by the complainant, who had suggested to surrender a plot which had a mosque and the appellant to surrender one plot to him. The complainant vowed to teach him a lesson.

On 26. 2.2018 he met the complainant and PW3. Complainant had a sword and PW3 an iron bar. PW3 hit him with the iron bar. He went for treatment and reported to the police. A p3 was filled.

The court evaluated the evidence and found that the prosecution had proved the case against the accused beyond reasonable doubt. He was convicted and sentenced to death.

The appellant, dissatisfied with the said sentence, appealed to this court against it, on the grounds that: -

1)The trial court failed to appreciate the conflict between section 297(2) and 389 of the penal code.

2)He was denied the right to a less severe sentence under Article 50(2) of the constitution.

I have considered the circumstances under which the said offence was committed, the mitigation by the appellant, considerations by the trial court before sentencing, grounds of the appeal and submissions by both sides.

The appellant must have brought the appeal on sentence based on the decision in Petition No. 15 and 16 of Francis Karioko Muruatetu and William Thirimbu Mwangi where the Supreme Court indicated that death sentence is not mandatory in murder cases.

Given that decision’s spirit the courts applied it in relation to all other offences with mandatory sentences inscribed under the law, such as in sexual offences and robbery with violence and its attempt. The confusion that arose made the supreme court revisit the Muruatetu decision with explicit explanation that it only applies in Murder cases and not any other offence.

The appellant herein was not charged with murder. He was charged with attempted robbery with violence which carries a mandatory death sentence. Even if this was not the case, and Muruatetu decision was to be applied as it were before the explanation, the death sentence perse had not been declared unlawful or unconstitutional but only the mandatory nature of it.

The trial court had this in mind when the magistrate explained in clear terms why he was going for the ultimate sentence in this one. The sentence given the circumstances would still have stood.

However, this is not the point here. The sentence is mandatory and this court has no jurisdiction to vary it.

The appeal therefore lacks merit and is hereby dismissed.

JUDGMENT READ AND SIGNED AT GARSEN IN THE OPEN COURT PHYSICALLY/VIRTUALLY THIS 3RD DAY OF FEBRUARY 2022 IN PRESENCE OF; -

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S.M. GITHINJI

JUDGE

In the presence of; -

1. Ms Mdongo –Prosecutor

2. Appellant/Accused person