[2020] KEHC 8883 (KLR)
The court found that the mandatory death sentence imposed on the applicants for robbery with violence was unconstitutional as it did not allow for consideration of mitigation. The Supreme Court in Muruatetu and subsequent appellate decisions established that courts must exercise discretion in sentencing and consider...
Source-derived case information.
- Citation
- [2020] KEHC 8883 (KLR)
- Parties
- Applicant: Mwendwa Kilonzo; Applicant: Jackson Wambua; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kitui
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 56 & 69 of 2018
- Procedural Posture
- Criminal Miscellaneous Application / Ruling on Application for Resentencing Following Supreme Court Decision
- Outcome
- application for resentencing allowed; death sentence set aside; matter referred for fresh sentencing
- Judges
- CM Kariuki
- Legal Topics
- Robbery With Violence, Mandatory Sentencing, Resentencing, Mitigation, Death Penalty, Constitutional Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mwendwa Kilonzo
Applicant
Jackson Wambua
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 for robbery with violence under section 296(2) of the Penal Code is constitutional in light of the Supreme Court decision in Muruatetu.
- 2 Whether the applicants are entitled to resentencing considering their mitigations and period in custody.
Ratio Decidendi
The court found that the mandatory death sentence imposed on the applicants for robbery with violence was unconstitutional as it did not allow for consideration of mitigation. The Supreme Court in Muruatetu and subsequent appellate decisions established that courts must exercise discretion in sentencing and consider all relevant factors, including mitigation and time spent in custody. Since the trial court did not consider these factors, the original sentence could not stand. The court therefore set aside the death sentence (which had been commuted to life imprisonment) and referred the matter back to the Chief Magistrate's Court for resentencing in accordance with the law and the...
Court Disposition
application for resentencing allowed; death sentence set aside; matter referred for fresh sentencing
Orders
- The death sentence which had been commuted to life sentence is set aside.
- The matter is referred back to the Chief Magistrate Courts Kitui for sentencing afresh after the court considers the mitigations and the period the applicants have been in custody.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KITUI
CRIMINAL MISC. APPLICATION NO. 56 OF 2018 AND NO. 69 OF 2018
(CONSOLIDATED)
MWENDWA KILONZO........................................................................1ST APPLICANT
JACKSON WAMBUA...........................................................................2ND APPLICANT
VERSUS
REPUBLIC...............................................................................................RESPONDENT
RULING
1. The 2 applicants were charged in Criminal Case No. 510 of 2001 in Principal Magistrate’s Court at Kitui with offence of robbery with violence contrary section 296(2) Penal Code Cap. 63 whereof they were found guilty, convicted, and sentenced to death.
2. They appealed in Machakos HCCRA No. 18, 19 and 20 of 2002 which after hearing was dismissed. They appealed to Court of Appeal No. 209 and 210 of 2004 which also after hearing dismissed the appeal.
3. They have now moved court under the window which was opened by the case of Supreme Court of Muruatetu Petition No. 15 of 2015.
4. The 2 applicants were arrested on 29/4/2001 and have been in custody since then for a period of about 19 years.
5. The prosecution did not oppose the application for re-sentence. The court is aware of the recent pronouncement in the cited Supreme case of Muruatetu and subsequent Court of Appeal decisions which have affirmed the principle that the mandatory aspect of the death sentence is unconstitutional.
6. In sentencing the applicants on 6/2/2002 the trial magistrate held that there is only one sentence provided by the law for those convicted of robbery with violence contrary to section 296(2) of the Penal Code; that is death penalty. Then the court proceeded to award each of the applicant’s death penalty.
7. Despite the mitigations tendered, the court did not consider the same or allude to the same as the court’s hands were tied by the law.
8. Thus the earlier mentioned authorities came into play. Thus the court finds that the death sentence meted to the applicants cannot stand as their mitigations were not considered.
9. Thus the court makes the following orders:
(1) The death sentence which had been commuted to life sentence is set aside.
(2) The matter is referred back to the Chief Magistrate Courts Kitui for the sentencing afresh after the court considers the mitigations and the period the applicants have been in custody.
(3) Orders accordingly.
DATED, SIGNED AND DELIVERED AT KITUI THIS 17th DAY OF JANUARY, 2020.
……………….…………
C. KARIUKI
JUDGE