[2019] KEHC 3902 (KLR)
The court held that, following the Supreme Court's decision in Muruatetu, the mandatory death sentence for robbery with violence is unconstitutional. The court considered the petitioner's circumstances, including the fact that he had served 21 years in prison, was remorseful, and had reformed. No one was injured...
Source-derived case information.
- Citation
- [2019] KEHC 3902 (KLR)
- Parties
- Applicant: Mohammed Hassan Osman; Respondent: Director of Public Prosecution
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Petition 42 of 2018
- Procedural Posture
- Constitutional Petition / Judgment
- Outcome
- petition allowed
- Judges
- DO Ogembo
- Legal Topics
- Resentencing, Mandatory Death Sentence, Robbery With Violence, Supreme Court Precedent
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mohammed Hassan Osman
Applicant
Director of Public Prosecution
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 based on the period already served.
Ratio Decidendi
The court held that, following the Supreme Court's decision in Muruatetu, the mandatory death sentence for robbery with violence is unconstitutional. The court considered the petitioner's circumstances, including the fact that he had served 21 years in prison, was remorseful, and had reformed. No one was injured during the commission of the offence. The court exercised its discretion to resentence the petitioner to the period already served, resulting in his immediate release unless otherwise lawfully held.
Court Disposition
petition allowed
Orders
- The petitioner is resentenced to the period already served of 21 years in prison.
- The petitioner is to be set free unless otherwise lawfully held.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO. 42 OF 2018
MOHAMMED HASSAN OSMAN......................PETITIONER
AND
DIRECTOR OF PUBLIC PROSECUTION.....RESPONDENT
JUDGMENT
1. The matter before the Court is a petition by the Petitioner for resentencing.
2. The Petitioner herein was charged with robbery with violence contrary to Section 296 (2) in Criminal Case No. 970 of 1998 and was sentenced to death on 25th March, 1999.
3. The Petitioner is now before this Court pursuant to the Supreme Court decision in Francis Karioko Muruatetu & Another vs. Republic [2017] eKLRin which the Court declared mandatory death sentence to be unconstitutional.
4. Mr. Fedha learned counsel for the Director of Public Prosecution has submitted that the Petitioner has served 21 years and was convicted of robbery with violence and used dangerous weapon but nobody was injured. The Petitioner has reformed.
5. I have considered the submission of the DPP and the circumstances of the case. The Petitioner was convicted for robbery with violence and has served 21 years in prison. The Petitioner is remorseful and has learnt his lesson.
6. This Court is satisfied that the Petitioner be jailed for the time already spent in prison of 21 years with the result that he is now set free unless otherwise lawfully held.
That is the Judgment of the Court.
Dated, Signed and Delivered at Mombasa this 8th day of October,2019.
E. K. OGOLA
JUDGE
In the presence of:
Mr. Fedha for DPP
Petitioner in person
Mr. Kaunda Court Assistant