[2020] KEHC 7026 (KLR)
The court found that, following the Supreme Court's decision in Francis Karioko Muruatetu & Another vs. Republic, the mandatory death sentence imposed on the Petitioner was unconstitutional. The court exercised its discretion to resentence the Petitioner, considering the seriousness of the offences, the...
Source-derived case information.
- Citation
- [2020] KEHC 7026 (KLR)
- Parties
- Appellant: Mwinyi Juma Kushinda; Respondent: Director of Public Prosecutions
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Petition 96 of 2019
- Procedural Posture
- Constitutional Petition / Resentencing After Supreme Court Decision
- Outcome
- death sentence set aside; petitioner resentenced to 30 years imprisonment
- Judges
- DO Ogembo
- Legal Topics
- Mandatory Death Sentence, Resentencing, Robbery With Violence, Indecent Assault, Penal Code Interpretation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mwinyi Juma Kushinda
Appellant
Director of Public Prosecutions
Respondent
Procedural Posture
Constitutional Petition / Resentencing After Supreme Court Decision
Legal Issues
- 1 Whether the mandatory death sentence imposed on the Petitioner is unconstitutional following the Supreme Court decision in Francis Karioko Muruatetu & Another vs. Republic [2017] eKLR.
- 2 What is the appropriate sentence for the offences of robbery with violence and indecent assault after setting aside the mandatory death penalty.
Ratio Decidendi
The court found that, following the Supreme Court's decision in Francis Karioko Muruatetu & Another vs. Republic, the mandatory death sentence imposed on the Petitioner was unconstitutional. The court exercised its discretion to resentence the Petitioner, considering the seriousness of the offences, the circumstances of the crime, and the objectives of sentencing. The court was not satisfied that the Petitioner had been rehabilitated or reformed and determined that immediate release was not appropriate. The court set aside the death sentence and imposed a term of 20 years imprisonment for robbery with violence and 10 years for indecent assault, to run consecutively, resulting in a total...
Court Disposition
death sentence set aside; petitioner resentenced to 30 years imprisonment
Orders
- The death sentence herein is hereby set aside.
- For count No. 1 in replacement of the death sentence, the Petitioner is hereby jailed for a term of 20 years from the date of conviction.
Full Case Text
Judgment text and source record
34 paragraphs
THE REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO. 96 OF 2019
MWINYI JUMA KUSHINDA.................................................PETITIONER
VERSUS
THE DIRECTOR OF PUBLIC PROSECUTIONS.............RESPONDENT
JUDGMENT
1. The Petitioner herein Mwinyi Juma Kushinda was charged, tried and convicted of two counts, namely robbery with violence contrary to Section 296 (2) of the Penal Code, and indecent assault on a female, contrary to Section 144 (1) of the same code. He was thereafter sentenced to mandatory death penalty on the first count, and 10 years imprisonment with 3 strokes of the cane in the second count to run consecutively.
2. His first appeal to the High Court was dismissed. His appeal to the Court of Appeal vide Civil Appeal No. 86 of 2001 was dismissed. The Petitioner is therefore before this court for purposes of resentencing pursuant to the Supreme Court decision in Francis Karioko Muruatetu & Another vs. Republic [2017] eKLRin which the apex court found the mandatory nature of the death sentence to be unconstitutional.
4. Mr. Fedha, learned Counsel for the State submitted that this court has the jurisdiction to resentence the Petitioner pursuant to the aforesaid case of Francis Muruatetu.
5. On sentencing however, counsel submitted that a prison term of 35 years is necessary for punishment of the offence. This is to include sentences in both counts.
6. The Petitioner on his part submitted that he has already reformed; that he is married with two children; that he is now 44 years old and if jailed for 35 years he will serve his entire life in prison. The Petitioner prayed for leniency.
7. The case against the Petitioner before the trial court was that he, in the company of several other persons while armed with pangas, bows and arrows descended on the home of RNN (N) at Tiwi on the night of 11th September, 2997, at 10. 00 p.m. N was inside her house with her niece, BW (W), the latter’s brother, AN (N), a house maid and one other person. The raiders demanded that a radio and other valuables be handled over to them through the window. But when N and those with her hesitated the raiders broke the door into the house and gained entry. While inside they raped the women before they escaped with several items belonging to N. N testified at the Petitioner’s trial that at the time the robbers broke into her house there was a lamp on and using the light from it and other light from a poultry house next to her house she was able to recognize the Petitioner as one of the people who broke into her house. It was further her evidence that she saw the Petitioner raping “her daughter”. It was her evidence that the Petitioner is a person she knew well before.
8. I have considered the petition and submissions. The aim of sentencing is to achieve the objectives of retribution, reformation and rehabilitation. The Petitioner herein does not seem to have been rehabilitated, leave alone reformed. I am not satisfied that he should just now join the orderly society, and so I am not able to release him immediately. The offences he committed are very serious offences including indecent assault.
9. The Court of Appeal had indicated that
“The proper order… should have been that the imprisonment term would stay in abeyance and to be executed only if for any lawful reason the sentence of death was set aside.”
10. Now an opportunity has come to set aside the death sentence.
11. In consideration of all the foregoing premises, I make the following orders:
(i) The death sentence herein is hereby set aside.
(ii) For count No. 1 in replacement of the death sentence, the Petitioner is hereby jailed for a term of 20 years from the date of conviction.
(iii) For Count No. 2 being indecent assault, the Petitioner is jailed to 10 years as pronounced by the trial court.
(iv) The sentences shall run CONSECUTIVELY.
(v) In total the Petitioner is jailed to 30 years from the date of conviction.
12. Right of appeal in 14 days.
Orders accordingly.
Dated, Signed and Delivered at Mombasa this 9th day of April, 2020.
E. K. O. OGOLA
JUDGE
In the presence of:
Ms. Mwangeka for DPP
Petitioner in person via video link
Mr. Kaunda Court Assistant