[2020] KEHC 8918 (KLR)
The court found that, following the Supreme Court's decision in Muruatetu, the mandatory death sentence previously imposed on the Petitioner was unconstitutional. The court exercised its discretion to resentence, considering the seriousness of the offence, the lack of remorse shown by the Petitioner, and the period...
Source-derived case information.
- Citation
- [2020] KEHC 8918 (KLR)
- Parties
- Appellant: Ngolo Konzi Mgute; Respondent: The Director of Public Prosecutions
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Petition 62 of 2017
- Procedural Posture
- Constitutional Petition / Resentencing Following Supreme Court Decision
- Outcome
- Death sentence set aside; Petitioner resentenced to 35 years' imprisonment from date of arrest.
- Judges
- DO Ogembo
- Legal Topics
- Mandatory Death Sentence, Resentencing, Right to Fair Trial, Mitigation in Sentencing
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ngolo Konzi Mgute
Appellant
The Director of Public Prosecutions
Respondent
Procedural Posture
Constitutional Petition / Resentencing Following Supreme Court Decision
Legal Issues
- 1 Whether the mandatory death sentence imposed on the Petitioner was unconstitutional in light of the Supreme Court decision in Francis Karioko Muruatetu & Another v Republic.
- 2 What is the appropriate sentence for the Petitioner upon setting aside the mandatory death sentence.
Ratio Decidendi
The court found that, following the Supreme Court's decision in Muruatetu, the mandatory death sentence previously imposed on the Petitioner was unconstitutional. The court exercised its discretion to resentence, considering the seriousness of the offence, the lack of remorse shown by the Petitioner, and the period already spent in custody. The court determined that a sentence of thirty-five years' imprisonment from the date of arrest was appropriate to reflect the gravity of the offence and the need for justice, while also complying with constitutional requirements for individualized sentencing.
Court Disposition
Death sentence set aside; Petitioner resentenced to 35 years' imprisonment from date of arrest.
Orders
- The death sentence imposed on the Petitioner is set aside.
- The Petitioner is sentenced to thirty-five (35) years' imprisonment from the date of arrest.
Full Case Text
Judgment text and source record
22 paragraphs
THE REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO. 62 OF 2017
NGOLO KONZI MGUTE...........................................................................PETITIONER
VERSUS
THE DIRECTOR OF PUBLIC PROSECUTIONS...............................RESPONDENT
JUDGMENT
1. The Petitioner was charged and convicted for the offence of murder in Mombasa Criminal Case No. 7 of 2012 and sentenced to death. He has lost all his appellate processes and is now in this court 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.
2. The Petitioner was found guilty for the murder of Charo Mgute Lugo at Tsunguni village, Jibana Location in Kaloleni District within Kilifi County on 11/2/2012. He used a panga and a metal rod to kill his victim. He was in company of another person.
3. On mitigation for sentencing the Petitioner said nothing, except that the submissions by the prosecution that the Petitioner be jailed for 45 years was too much. The Petitioner did not show any remorsefulness. He has been in jail for seven years.
4. Mr. Fedha, learned counsel for the State urged the court to meet out a stiff sentence of 45 years from the date of arrest.
5. The offence for which the Petitioner was committed and sentenced to death is a serious offence which deserves to be adequately punished. Any person who takes away the life of another must take the consequences of such action. I hereby set aside the death sentence given to the Petitioner and in place thereof I jail the Petitioner for thirty five (35) years from the date of arrest.
Right of appeal in 14 days.
Dated, Signed and Delivered at Mombasa this 21st day of January, 2020
E. K. O. OGOLA
JUDGE
In the presence of:
Mr. Fedha for DPP
Petitioner in person
Mr. Kaunda Court Assistant