[2020] KEHC 10376 (KLR)
The court found that the mandatory death sentence imposed on the petitioner for the offence of robbery with violence was unconstitutional, in line with the Supreme Court decision in Muruatetu. The court recognized its jurisdiction to resentence the petitioner, noting that he had already served 16 years in prison....
Source-derived case information.
- Citation
- [2020] KEHC 10376 (KLR)
- Parties
- Appellant: Mohamed Mwalimu Mohamed; Respondent: Director of Public Prosecutions
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Constitutional Petition 194 of 2019
- Procedural Posture
- Constitutional Petition / Judgment
- Outcome
- petition allowed in part; petitioner resentenced to period served and released unless otherwise lawfully held.
- Judges
- DO Ogembo
- Legal Topics
- Mandatory Death Sentence, Resentencing, Right to Fair Trial, Robbery With Violence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mohamed Mwalimu Mohamed
Appellant
Director of Public Prosecutions
Respondent
Procedural Posture
Constitutional Petition / Judgment
Legal Issues
- 1 Whether the mandatory death sentence for robbery with violence is unconstitutional in light of the Supreme Court decision in Muruatetu.
- 2 Whether the petitioner is entitled to resentencing after serving 16 years in jail.
- 3 Whether the petitioner.s rights under the Constitution were violated by the imposition of a mandatory death sentence.
Ratio Decidendi
The court found that the mandatory death sentence imposed on the petitioner for the offence of robbery with violence was unconstitutional, in line with the Supreme Court decision in Muruatetu. The court recognized its jurisdiction to resentence the petitioner, noting that he had already served 16 years in prison. Given the circumstances of the offence, the period already served, and the prosecution's concession that a 15-year sentence would be adequate, the court determined that the petitioner should be sentenced to the period already served. Consequently, the petitioner was ordered to be released from prison unless otherwise lawfully held. The decision affirms the principle that courts...
Court Disposition
petition allowed in part; petitioner resentenced to period served and released unless otherwise lawfully held.
Orders
- The petitioner is resentenced to the period already served in prison.
- The petitioner is to be released from jail unless otherwise lawfully held.
Full Case Text
Judgment text and source record
42 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MOMBASA
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
COURT OF APPEAL NO.250 OF 2016, HIGH COURT APPEAL NO.184 OF 2006
IN RESPECT OF CRIMINAL CASE NO.3267 OF 2005 IN CM’s COURT AT MOMBASA
CONSTITUTIONAL PETITION NO.194 OF 2019
IN THE MATTER OF: ARTICLE 22(1) OF THE CONSTITUTION OF KENYA 2010
AND
IN THE MATTER OF: ARTICLE 50(1),(2)(P), 21(1)(3)(C), 23(1)(3) OF THE CONSTITUTION OF KENYA, 2010
AND
IN THE MATTER OF: CONTRAVENTION OF FUNDAMENTAL RIGHTS AND FREEDOMS OF THE INDIVIDUAL UNDER ARTICLES 25(A)(B)(C), 26(1), 27(1)(2)(4), 28, 29(A)(C)(D)(F), 35(1), 48 OF THE CONSTITUTION 2010
AND
IN THE MATTER OF: ARTICLE 258(1) AND 259(1)(3)(A) OF THE GENERAL PROVISION OF THE NEW CONSTITUTION
AND
IN THE MATTER OF: SECTION 329 AND 216 OF THE CRIMINAL PROCEDURE CODE
BETWEEN
MOHAMED MWALIMU MOHAMED............................................PETITIONER
VERSUS
THE DIRECTOR OF PUBLIC PROSECUTIONS........................RESPONDENT
JUDGMENT
Background
1. The Petitioner herein was arraigned before the Mombasa Chief Magistrate’s Court on a charge of Robbery with Violencecontrary to Section 296(2)of thePenal Code.
2. The particulars of that offence were that on 2nd August, 2005 at around 7. 00pm at Mwandoni Village in Mombasa District within Coast Province, jointly with others not before court, while armed with dangerous weapons, namely knives, robbed Khadija Ahmed of a mobile phone make Samsung valued at Kshs.7,000/= and cash Kshs.1,500/= and at or immediately before or immediately after the time of such robbery used actual violence on the said Khadija Ahmed.
3. The Petitioner entered a plea of ‘not guilty’ and his trial began. After his trial, the Learned Trial Magistrate found the Petitioner guilty of the said offence, convicted him and sentenced him to death.
4. Being aggrieved by the said conviction and sentence, the Petitioner filed Mombasa High Court Criminal Appeal No.184 of 2006, which the Court dismissed vide its Judgment delivered on 6th September, 2011. Thereafter, the Petitioner filed Mombasa Court of Appeal Criminal Appeal No.250 of 2011, which was equally dismissed vide Judgment delivered on 11th March, 2016.
5. The Petitioner is seeking a re-sentence in the instant Petition pursuant to the Supreme Court’s decision in the case of Francis Karioko Muruatetu & Another – vs- Republic[2017] eKLR, in which the apex court decided that the mandatory nature of the death sentence was unconstitution.
Circumstances of the case
6. The victim was attacked by a group of three men.
7. The victim positively identified the Petitioner as one of her attackers.
8. The Petitioner robbed the victim of a mobile phone make Samsung valued at Kshs.7,000/= and cash Kshs.1,500/=.
9. The prosecution conceded that this Court can interfere with the death sentence meted on the Petitioner pursuant to the aforesaid Muruatetu case, and submitted that a sentence of 15 years is adequate. However, the Petitioner has indeed served 16 years in jail.
10. I therefore jail the Petitioner for time equivalent to that he has already served with the result that he is hereby released and set free from jail unless otherwise lawfully held.
DATED, SIGNED and DELIVERED at MOMBASA on this 10th day of December, 2020.
E. K. OGOLA
JUDGE
Ruling delivered in chambers via MS Teams in the presence of:
Mr. Moke for DPP
Petitioner in person
Court Assistant – Peris
Note:
In view of the declaration of measures restricting court operations due to
the COVID-19 pandemic and in light of the directions issued by His Lordship the Chief Justice on 15th March 2020, this Judgment has been delivered to the parties online with their consent. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules which requires that all judgments and rulings be pronounced in open Court.