[2018] KEHC 3797 (KLR)
The court held that, following the Supreme Court's decision in Francis Karioko Muruatetu & Another v Republic, the mandatory death sentence imposed on the applicant for the offence of robbery with violence is unconstitutional. The court found that the applicant is entitled to a review of his sentence. As the trial...
Source-derived case information.
- Citation
- [2018] KEHC 3797 (KLR)
- Parties
- Applicant: Mulatya Musau; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kitui
- Jurisdiction
- Kenya
- Case Number
- Petition 5 of 2018
- Procedural Posture
- Criminal Review Application / Ruling on Application for Review of Sentence
- Outcome
- Application allowed; case remitted to trial court for re-sentencing.
- Judges
- LN Mutende
- Legal Topics
- Robbery With Violence, Sentencing Review, Constitutionality of Mandatory Sentences
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mulatya Musau
Applicant
Republic
Respondent
Procedural Posture
Criminal Review Application / Ruling on Application for Review of Sentence
Legal Issues
- 1 Whether the mandatory death sentence for robbery with violence is unconstitutional following the Supreme Court decision in Francis Karioko Muruatetu & Another v Republic.
- 2 Whether the applicant is entitled to a review and re-sentencing based on the unconstitutionality of the mandatory sentence.
Ratio Decidendi
The court held that, following the Supreme Court's decision in Francis Karioko Muruatetu & Another v Republic, the mandatory death sentence imposed on the applicant for the offence of robbery with violence is unconstitutional. The court found that the applicant is entitled to a review of his sentence. As the trial court was the Magistrate's Court, the High Court remitted the matter to the Chief Magistrate's Court at Kitui for re-sentencing, in line with the directions of the Supreme Court. The court thus exercised its jurisdiction to facilitate the applicant's right to a fair and constitutional sentencing process.
Court Disposition
Application allowed; case remitted to trial court for re-sentencing.
Orders
- The case is remitted to the Chief Magistrate's Court at Kitui for re-sentencing.
- Mention before the Chief Magistrate, Kitui on 3rd October, 2018 for directions.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KITUI
PETITION NO. 5 OF 2018
IN THE MATTER OF SUPREME COURT PETITION NO. 15 OF 2015
AND
IN THE MATTER OF COURT OF APPEAL NO. 109 OF 2006 – NAIROBI
AND
IN THE MATTER OF HIGH COURT CRIMINAL APPEAL NO. 181 OF 2004 – MACHAKOS
AND
IN THE MATTER OF CRIMINAL CASE NO. 301 OF 2004 AT KITUI
BETWEEN
MULATYA MUSAU.........................................................APPLICANT
VERSUS
REPUBLIC.....................................................................RESPONDENT
R U L I N G
1. By an application filed herein on the 11th June, 2018the Applicants seek review of the sentence imposed following their conviction for the offence of Robbery with Violencecontrary to Section 29(2)of the Penal Code.Their argument is that the mandatory nature of the sentence meted out is unconstitutional and therefore prejudicial to him.
2. The application arises as a result of the decision of the Supreme Court in Francis Karioko Muruatetu & Another vs. Republic SCK Petition Number 15 of 2015 (2017) eKLR.A decision that declared the death sentence unconstitutional and referred the matter for re-sentencing.
3. By the nature of the case the Applicant was charged with the Court of the first instance was the Magistrate’s Court. Consequently, I hereby remit the case to the Trial Court for re-sentencing. Mention before the Chief Magistrate, Kitui on the 3rd October, 2018for directions.
4. It is so ordered.
Dated, Signedand Deliveredat Kituithis 27thday of September,2018.
L. N. MUTENDE
JUDGE