[2019] KEHC 7634 (KLR)
The court found that, following the Supreme Court's decision in Muruatetu, the mandatory death sentence for murder is unconstitutional. The applicants, having been sentenced under the now-invalidated mandatory regime, were entitled to resentencing. The court considered the gravity of the offence, including the...
Source-derived case information.
- Citation
- [2019] KEHC 7634 (KLR)
- Parties
- Applicant: Mwende Mutisya; Applicant: Nzinwa Mavindi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kitui
- Jurisdiction
- Kenya
- Case Number
- Criminal Miscellaneous Application 74 of 2018
- Procedural Posture
- Criminal Miscellaneous Application / Application for Resentencing Following Supreme Court Decision
- Outcome
- sentence varied; death sentence set aside and substituted with 40 years' imprisonment from date of conviction
- Judges
- LN Mutende
- Legal Topics
- Murder Sentencing, Mandatory Death Penalty, Resentencing Principles, Constitutional Rights, Mitigation Factors
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mwende Mutisya
Applicant
Nzinwa Mavindi
Applicant
Republic
Respondent
Procedural Posture
Criminal Miscellaneous Application / Application for Resentencing Following Supreme Court Decision
Legal Issues
- 1 Whether the mandatory death sentence for murder is unconstitutional following the Supreme Court decision in Muruatetu.
- 2 Whether the applicants are entitled to resentencing and what sentence is appropriate given the circumstances.
Ratio Decidendi
The court found that, following the Supreme Court's decision in Muruatetu, the mandatory death sentence for murder is unconstitutional. The applicants, having been sentenced under the now-invalidated mandatory regime, were entitled to resentencing. The court considered the gravity of the offence, including the manner of killing and concealment of the body, as well as the applicants' time already spent in custody (thirteen years), rehabilitation, and personal circumstances. Balancing these factors, the court set aside the death sentence and substituted it with a term of forty years' imprisonment, effective from the date of conviction.
Court Disposition
sentence varied; death sentence set aside and substituted with 40 years' imprisonment from date of conviction
Orders
- The sentence of death imposed on the applicants is set aside.
- The applicants are sentenced to 40 years' imprisonment each, effective from the date of conviction.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KITUI
CRIMINAL MISC. APPLICATION NO. 74 OF 2018
MWENDE MUTISYA...................................................1ST APPLICANT
NZINWA MAVINDI......................................................2ND APPLICANT
VERSUS
REPUBLIC.......................................................................RESPONDENT
R U L I N G
1. Mwende Mutisya(1st Applicant) and Nzinwa Mavindi(2nd Applicant) were convicted of the offence of murder on the 31stday of March, 2016,and ultimately sentenced to suffer death.
2. In their respective Applications, they seek re-sentencing pursuant to the decision of the Supreme Court in Petition No. 15 and 16 of 2015 Francis Muruatetu and Another vs. Republic.
3. It was urged by the 1st Applicant that death sentence having been declared unconstitutional he is ready and willing to abide with the law by leading a more productive life as he had been rehabilitated. He sought to be released forthwith. He mitigated that he had trained and acquired skills in tailoring. He has a family of one wife and four (4) children who live with their maternal grandparents since his parents died at an early age.
4. The 2nd Appellant emphasized the fact that he has a right to be re-sentenced since the mandatory death sentence was declared unconstitutional. That the duty of the Court is to protect, promote, preserve and bring into reality the values and principles enshrined in the Constitution.
5. The Applicants having been sentenced to death which is unconstitutional I am duty bound to re-sentence. In meting out a sentence the Court must consider inter alia,the remorsefulness of the offenders if any, the character and record of the offence.
6. The offence herein was a serious one that attracts a sentence upto the one that was meted out. Looking at the circumstances in which the offence was committed, the Deceased was injured on the head. There were fractures of the head amongst other injuries that caused the death. In perpetuation of their malicious action the Applicants concealed the body by interring it in a cowshed. These are circumstances that should not be overlooked.
7. The Applicants were arraigned in Court on the 8th July, 2002and remained in custody until 31st March, 2006when they were convicted. I do take into consideration that duration and the period they have been in custody of thirteen years.Pursuant to the decision of Muruatetu Case(supra) I set aside the sentence imposed and substitute it with 40 years imprisonmentto be effective from the date of conviction.
8. It is so ordered.
Dated, Signed and Delivered at Kitui this 24th day of April, 2019.
L. N. MUTENDE
JUDGE