[2021] KEHC 1294 (KLR)
The court held that the Supreme Court's decision in Muruatetu and its subsequent directions restrict the application of the unconstitutionality of mandatory death sentences to murder cases only. Since the petitioner was convicted of robbery with violence, the Muruatetu decision does not apply to his case. Therefore,...
Source-derived case information.
- Citation
- [2021] KEHC 1294 (KLR)
- Parties
- Applicant: Nicholas Karani Kombo; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kerugoya
- Jurisdiction
- Kenya
- Case Number
- Petition 5 of 2018
- Procedural Posture
- Constitutional Petition / Ruling on Application for Resentencing
- Outcome
- application dismissed
- Judges
- JK Mulwa, RM Mwongo
- Legal Topics
- Mandatory Sentencing, Death Penalty, Robbery With Violence, Application of Supreme Court Precedent
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Nicholas Karani Kombo
Applicant
Republic
Respondent
Procedural Posture
Constitutional Petition / Ruling on Application for Resentencing
Legal Issues
- 1 Whether the Supreme Court decision in Muruatetu applies to mandatory death sentences for robbery with violence.
- 2 Whether the petitioner is entitled to resentencing based on the Muruatetu decision.
Ratio Decidendi
The court held that the Supreme Court's decision in Muruatetu and its subsequent directions restrict the application of the unconstitutionality of mandatory death sentences to murder cases only. Since the petitioner was convicted of robbery with violence, the Muruatetu decision does not apply to his case. Therefore, the petitioner is not entitled to resentencing on the basis of the Muruatetu precedent, and his application must be dismissed.
Court Disposition
application dismissed
Orders
- The application dated 27th September 2018 is dismissed.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KERUGOYA
PETITION NO. 5 OF 2018
NICHOLAS KARANI KOMBO......PETITIONER
-VERSUS-
REPUBLIC.......................................RESPONDENT
RULING
1. The Petitioner, Nicholas Karani Kombo, was charged, tried and convicted of the offence of robbery with violence contrary to Section 296(2)of thePenal Code vide Criminal Case No. 22 of 2012 at the Principal Magistrates Court in Wang’uru and sentenced to death. His subsequent appeals both to the High Court vide Kerugoya High Court Criminal Appeal No. 98 of 2013 and the Court of Appeal in Nyeri were dismissed.
2. Vide an application dated 27th September 2018 and filed on 12th October 2018, the Petitioner sought for review of his sentence pursuant to the Supreme Court decision in Francis Karioko Murwatetu & Another v Republic [2017] eKLR delivered on 14th December 2017, on the ground that the said decision declared the mandatory nature of the death sentence unconstitutional.
3. Whereas the Muruatetu decision only dealt with the mandatory death penalty in murder cases, it is common knowledge that its application was modified to include all mandatory sentences following several decisions by the Court of Appeal in that regard which led to an avalanche of petitions for resentencing. However, through directions given on 6th July 2021, the Supreme Court made it clear thatthe Muruatetu decision is only applicable in murder cases and not any other cases where the law provides for mandatory sentences. The Supreme Court stated inter alia:
“…Muruatetu cannot be the authority for stating that all provisions of the law prescribing mandatory or minimum sentences are inconsistent with the Constitution.
[15] To clear the confusion that exists with regard to the mandatory death sentence in offences other than murder, we direct in respect of other capital offences such as treason under Section 40 (3), robbery with violence under Section 296 (2), and attempted robbery with violence under Section 297 (2) of the Penal Code, that a challenge on the constitutional validity of the mandatory death penalty in such cases should be properly filed, presented, and fully argued before the High Court and escalated to the Court of Appeal, if necessary, at which a similar outcome as that in this case may be reached.”
4. The Supreme Court emphasized that the Muruatetu decision and the guidelines given in its directions of 6th July 2021 apply only in respect to sentences of murder under Sections 203 and 204 of the Penal Code.What this means therefore is that the Petitioner is effectively locked out from benefiting from the Muruatetu decision since it is not applicable to the offence of robbery with violence. In the premises, the application dated 27th September 2018 is dismissed.
Orders accordingly.
DATED AND SIGNED THIS DAY OF 2021
HON. J. N. MULWA
JUDGE
DELIVERED AT KERUGOYA THIS 14TH DAY OF DECEMBER 2021
HON. R. MWONGO
JUDGE