[2019] KEHC 4221 (KLR)
The court found that the mandatory death sentence imposed on the applicants for robbery with violence was unconstitutional in light of the Supreme Court's decision in Muruatetu & Another vs Republic [2017] eKLR. The trial court had failed to consider the applicants' mitigation due to the mandatory nature of the...
Source-derived case information.
- Citation
- [2019] KEHC 4221 (KLR)
- Parties
- Applicant: Musee Musili; Applicant: Nyerere Munywoki; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Garissa
- Jurisdiction
- Kenya
- Case Number
- Criminal Miscellaneous Application 29 & 16 of 2019
- Procedural Posture
- Criminal Miscellaneous Application / Ruling on Application for Resentencing Following Supreme Court Decision
- Outcome
- Application allowed. Death sentence set aside. Applicants referred for resentencing.
- Judges
- CM Kariuki
- Legal Topics
- Resentencing, Mandatory Sentences, Robbery With Violence, Mitigation, Death Penalty, Constitutional Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Musee Musili
Applicant
Nyerere Munywoki
Applicant
Republic
Respondent
Procedural Posture
Criminal Miscellaneous Application / Ruling on Application for Resentencing Following Supreme Court Decision
Legal Issues
- 1 Whether the mandatory death sentence imposed on the applicants for robbery with violence should be set aside in light of the Supreme Court decision in Muruatetu.
- 2 Whether the applicants should be referred back to the trial court for resentencing after consideration of mitigation.
Ratio Decidendi
The court found that the mandatory death sentence imposed on the applicants for robbery with violence was unconstitutional in light of the Supreme Court's decision in Muruatetu & Another vs Republic [2017] eKLR. The trial court had failed to consider the applicants' mitigation due to the mandatory nature of the sentence. Consequently, the High Court set aside the death sentence and ordered that the applicants be presented before the Mwingi Law Courts for resentencing, where their mitigation would be duly considered.
Court Disposition
Application allowed. Death sentence set aside. Applicants referred for resentencing.
Orders
- The death sentence in Mwingi Criminal Case No. 858 of 2010 is hereby set aside.
- The two accused persons are to be presented to Mwingi Law Courts with file No. 858 of 2010 for resentencing after consideration of mitigation.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT GARISSA
CRIMINAL MISC. APPLICATION NO. 29 AND 16 OF 2019 (CONSOLIDATED)
MUSEE MUSILI................................. 1ST APPLICANT
NYERERE MUNYWOKI..................2ND APPLICANT
VERSUS
REPUBLIC..............................................RESPONDENT
RULING
1. Musee Musili in Criminal Misc. Application No. 29 of 2019 and Nyerere Munywoki in Criminal Misc. No. 16 of 2019 have moved court for resentencing pursuant to their conviction and sentence in Mwingi Criminal Case No. 858 of 2010 on 15/3/2013.
2. They had been sentenced to death in above matter after conviction on offence of robbery contrary to section 296 (2) of the Penal Code Cap 63 Laws of Kenya. This is after their colleagues their co-accused Issack Kimanzi Musee, Joseph Mutio Mbuko and Eric Mwanzia Mbiti in High Court Criminal Misc. Application No. 22 of 2018, 23 of 2018 and 35 of 2018 consolidated in High Court Garissa succeeded in having death sentence set aside and re-sentenced by this court.
3. The applicants herein seek to be referred back to Mwingi Court for re-sentencing after this court sets aside death sentence.
4. In the case of Muruatetu & Another vs Republic [2017] eKLR the Supreme Court declared mandatory death sentence unconstitutional thus triggering these types of applications.
5. On 25/2/2012 after mitigation the trial court stated that:
“The offence each of the accused have been convicted of carry a mandatory one type of sentence. Thus each sentenced to death.”
6. Thus the court did not consider their mitigations.
7. In line with the aforesaid case of Muruatetu above I do set aside the sentence of death accordingly. The 2 applicants have sought to be referred back to Mwingi Law Court for re-sentencing.
8. I agree with their request. Thus I order:-
(i) The death sentence in Mwingi Criminal Case No. 858 of 2010 is hereby set aside.
(ii) The 2 accused persons are hereby to be presented to Mwingi Law Courts with file No. 858 of 2010 for re-sentencing accordingly after the court considers their mitigations.
(iii) Orders accordingly.
DATED, SIGNED AND DELIVERED AT GARISSA THIS 26TH DAY OF SEPTEMBER, 2019.
………….……………
C. KARIUKI
JUDGE