[2020] KEHC 8151 (KLR)
The court found that the High Court, in substituting the applicant's life sentence with a death sentence, did not impose the sentence as mandatory but exercised judicial discretion after considering the circumstances, including the fact that the applicant and another caused death during the robbery. The Supreme...
Source-derived case information.
- Citation
- [2020] KEHC 8151 (KLR)
- Parties
- Applicant: Onesmus Kali Mulandi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Garissa
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 18 of 2019
- Procedural Posture
- Criminal Miscellaneous Application / Application for Resentencing After Conviction and Appeal
- Outcome
- application dismissed
- Judges
- CM Kariuki
- Legal Topics
- Resentencing, Mandatory Death Sentence, Robbery With Violence, Constitutional Rights, Judicial Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Onesmus Kali Mulandi
Applicant
Republic
Respondent
Procedural Posture
Criminal Miscellaneous Application / Application for Resentencing After Conviction and Appeal
Legal Issues
- 1 Whether the applicant is entitled to resentencing following the Supreme Court decision in Francis Karioko Muruatetu & Anor vs Republic.
- 2 Whether the sentence imposed by the High Court was unconstitutional or mandatory in nature.
Ratio Decidendi
The court found that the High Court, in substituting the applicant's life sentence with a death sentence, did not impose the sentence as mandatory but exercised judicial discretion after considering the circumstances, including the fact that the applicant and another caused death during the robbery. The Supreme Court decision in Muruatetu declared the mandatory nature of the death sentence unconstitutional but did not invalidate the death sentence itself when imposed with discretion. Since the sentence was not mandatory and was imposed after due consideration, and there was no pending appeal, the court held that there was no basis to interfere with the sentence. The application for...
Court Disposition
application dismissed
Orders
- The application for resentencing is dismissed for want of merit.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT GARISSA
CRIMINAL MISC. APPLICATION NO. 18 OF 2019
ONESMUS KALI MULANDI....................................................................APPLICANT
VERSUS
REPUBLIC...............................................................................................RESPONDENT
RULING
1. The applicant Onesmus Kali Mulandi was convicted and sentenced for life for offence of robbery with violence contrary to section 296(2) Penal Code.
2. Particulars being that on 20/9/2010 at Kanzaaka village in Kyuso District within Kitui County while armed with dangerous weapon namely a panga robbed Wilson Mbevo Muthangya of a bicycle and a mobile phone all valued at Kshs.7,500/= and immediately after the said robbery killed the said victim.
3. The applicant lodged appeal No. 1 of 2013 High Court at Garissa which after it was heard by Mutuku and Korir J.J. upheld the conviction and substituted life sentence with death sentence.
4. The applicant now moves to this court in what he calls an application for resentencing pursuant to Supreme Court case of Francis Karioko Muruatetu & Anor vs Republic delivered on 14/12/2017 whereby the court held:
“Para (112) The mandatory nature of death sentence..... is hereby declared unconstitutional. For avoidance of doubt, this does not disturb the validity of death sentence as contemplated under Article 26(3) of the Constitution.”
5. The 2 judges did substitute the life sentence with death sentence but not as mandatory death sentence neither did they say so. They looked at the circumstances of the case and especially that the applicant and another occasioned and caused death when they were executing robbery.
6. Thus I find this is not appropriate case for interfering with sentence made by my 2 colleagues in the High Court.
7. For avoidance of doubt this court is mandated to interfere with sentence of High Court which is unconstitutional under Muruatetu case and subsequent Court of Appeal decisions if the same is made before 14/12/2017 and where there is no pending appeal in Court of Appeal.
8. Thusthe court dismisses the instant application for want of merit.
DATED, DELIVERED AND SIGNED AT GARISSA THIS 19TH DAY OF FEBRUARY, 2020.
……………….………………
C. KARIUKI
JUDGE