[2023] KEHC 3350 (KLR)
The court found that while the petitioner was convicted of a serious offence involving violence and aggravating factors, the imposition of a mandatory death sentence without consideration of individual circumstances is inconsistent with modern sentencing principles. The court exercised its discretion to impose a...
Source-derived case information.
- Citation
- [2023] KEHC 3350 (KLR)
- Parties
- Appellant: Tarasisio Mutembei; Respondent: The DPP
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Petition E026 of 2023
- Procedural Posture
- Criminal Resentencing Application / Judgment
- Outcome
- petition allowed in part; petitioner resentenced to 20 years' imprisonment from date of conviction
- Judges
- TW Cherere
- Legal Topics
- Resentencing, Mandatory Sentences, Robbery With Violence, Aggravating Factors, Sentencing Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Tarasisio Mutembei
Appellant
The DPP
Respondent
Procedural Posture
Criminal Resentencing Application / Judgment
Legal Issues
- 1 Whether the petitioner is entitled to resentencing following the imposition of a mandatory death sentence.
- 2 Whether the aggravating factors justify the original sentence or warrant a determinate term.
Ratio Decidendi
The court found that while the petitioner was convicted of a serious offence involving violence and aggravating factors, the imposition of a mandatory death sentence without consideration of individual circumstances is inconsistent with modern sentencing principles. The court exercised its discretion to impose a determinate sentence, taking into account the period already served, the seriousness of the offence, and the need for both deterrence and the possibility of rehabilitation. The petitioner was resentenced to 20 years' imprisonment from the date of conviction, with the hope that he would pursue reformation and reintegration into society.
Court Disposition
petition allowed in part; petitioner resentenced to 20 years' imprisonment from date of conviction
Orders
- Petitioner is resentenced to serve 20 years' imprisonment from January 16, 2014.
- Time already served to be taken into account as per section 333(2) of the Criminal Procedure Code.
Full Case Text
Judgment text and source record
25 paragraphs
Mutembei v DPP (Petition E026 of 2023) [2023] KEHC 3350 (KLR) (20 April 2023) (Judgment)
Neutral citation: [2023] KEHC 3350 (KLR)
Republic of Kenya
In the High Court at Meru
Petition E026 of 2023
TW Cherere, J
April 20, 2023
Between
Tarasisio Mutembei
Petitioner
and
The DPP
Respondent
Judgment
1. Petitioner was convicted of robbery with violence and sentenced to death on January 16, 2014. His appeal to the High Court vide HCCr.Appeal No 5 of 2014 was dismissed.
2. Petitioner seeks resentence on the ground that he was sentenced to a mandatory sentence.
3. Ms. Rita for the DPP opposed the application on the grounds that the victim suffered serious injuries and Petitioner was armed with dangerous weapons during the robbery.
4. The aggravating factors in this matter are that the victim suffered serious injuries and was treated as an inpatient for one month.
5. In the South African case of S vs Mchunu andanother (AR24/11) [2012] ZAKZPHC 6, Kwa Zulu Natal High Court held that sentencing vests a discretion in the trial court to consider what a fair and appropriate sentence should be.
6. Another South African case of S v Scott-Crossley 2008 (1) SACR 223 (SCA) at para 35 set out the purpose behind a sentence as follows:‘Plainly any sentence imposed must have deterrent and retributive force. But of course one must not sacrifice an accused person on the altar of deterrence. Whilst deterrence and retribution are legitimate elements of punishments, they are not the only ones, or for that matter, even the over-riding ones. . . [i]t is true that it is in the interests of justice that crime should be punished. However, punishment that is excessive serves neither the interests of justice nor those of society.”
7. Flowing from the foregoing, I find that it would not serve any meaningful purpose to confine Petitioner to a life of hopelessness. I am therefore persuaded to resentence petitioner to a determinate sentence.
8. In resentencing the petitioner, I have taken into account the provisions of section 333(2) of the Criminal Procedure Code and the fact that he might have spent some time in custody from the date of his arrest to the date of conviction and he has already served over 9 years from the date of conviction.
9. In the end, petitioner is thus resentenced to serve 20 years from the date of his conviction on January 16, 2014.
10. It is hoped that petitioner will undertake some form of training as a way of reformation so that he can easily integrate with the community once released.
DELIVERED AT MERU THIS 20TH DAY OF APRIL2023WAMAE. T. W. CHEREREJUDGEAppearancesCourt Assistant - KinotiPetitioner - Present in personFor the State - Ms. Rita (PC- 1)