[2020] KEHC 9258 (KLR)
The court found that, pursuant to the Supreme Court's decision in Muruatetu, the mandatory death penalty for robbery with violence is unconstitutional. The court considered the submissions of both parties and the Probation Officer's Social Inquiry Report, which indicated that the Petitioner was not remorseful and...
Source-derived case information.
- Citation
- [2020] KEHC 9258 (KLR)
- Parties
- Petitioner: Mutinda Wambua Kioko; Respondent: The Director of Public Prosecutions
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Petition 46 of 2015
- Procedural Posture
- Constitutional Petition / Judgment
- Outcome
- death sentence set aside; substituted with 22 years imprisonment from date of arrest
- Judges
- DO Ogembo
- Legal Topics
- Mandatory Death Penalty, Sentencing Reform, Robbery With Violence, Fair Trial Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mutinda Wambua Kioko
Petitioner
The Director of Public Prosecutions
Respondent
Procedural Posture
Constitutional Petition / Judgment
Legal Issues
- 1 Whether the mandatory death penalty for robbery with violence under Section 292(2) of the Penal Code is unconstitutional in light of the Supreme Court decision in Muruatetu.
- 2 What is the appropriate sentence for the Petitioner after the death penalty is set aside.
Ratio Decidendi
The court found that, pursuant to the Supreme Court's decision in Muruatetu, the mandatory death penalty for robbery with violence is unconstitutional. The court considered the submissions of both parties and the Probation Officer's Social Inquiry Report, which indicated that the Petitioner was not remorseful and had not reformed. The court also took into account the hostility of the community towards the Petitioner. Balancing these factors, the court set aside the death sentence and imposed a determinate sentence of twenty-two years imprisonment from the date of arrest, finding this to be a fair and proportionate sentence in the circumstances.
Court Disposition
death sentence set aside; substituted with 22 years imprisonment from date of arrest
Orders
- The death sentence imposed on the Petitioner is set aside.
- The Petitioner is sentenced to serve twenty-two (22) years imprisonment from the date of arrest.
Full Case Text
Judgment text and source record
23 paragraphs
THE REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MOMBASA
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO. 46 OF 2015
MUTINDA WAMBUA KIOKO...........................................................PETITIONER
VERSUS
THE DIRECTOR OF PUBLIC PROSECUTIONS........................RESPONDENT
JUDGMENT
1. The Petitioner herein was jointly charged with six counts of the offence of robbery with violence contrary to Section 292(2) of the Penal code in counts I, II, III, IV and V respectively. That on the night of 9th and 10th May, 2003, the Petitioner and others waylaid, attacked and robbed passengers arriving from different destinations in Taveta. The Petitioner was convicted and sentenced to death.
2. The Petitioner is now in this court pursuant to the Supreme court decision in Francis Karioko Muruatetu & Another vs. Republic [2017] eKLRin which the apex court made a finding that the mandatory nature of the death penalty is unconstitutional.
3. The Petitioner had attacked two ladies who had alighted from a public service vehicle and stole from them personal effects. Between 1. 30 a.m. to 2. 30 a.m. the Petitioner moved to a different spot where again he stopped two men and attacked them and robbed them of money and personal effects.
4. the Petitioner submitted that he should be jailed for the 16 years he has already served in prison.
5. On his part Mr. Fedha, learned counsel for the DPP submitted that the Petitioner is not remorseful and should be jailed for 28 years including the 16 years already served.
6. I have considered the said submission. On 11/3/19 this court directed the Probation Officer to file a Social Inquiry Report on the Petitioner. That report was filed on 19/9/19. The report does not recommend an early release of the Petitioner. The report notes that the Petitioner is not remorseful, is still hostile and has not reformed to deserve an early release. The report further notes that the community from which the Petitioner comes in still very hostile to him and may harm him because the Petitioner used to be involved in a series of robberies.
7. Be that as it may, the Petitioner is entitled to a fair assessment. After considering everything this court sets aside the death sentence meted on the Petitioner, and in place thereof the Petitioner is hereby sentenced to serve a term of twenty two (22) years in prison from the date of arrest.
8. Right of appeal in 14 days.
Dated, Signed and Delivered at Mombasa this 30th day of January, 2020
E. K. O. OGOLA
JUDGE
In the presence of:
Mr. Fedha for DPP
Petitioner in person
Mr. Kaunda Court Assistant