[2020] KEHC 755 (KLR)
The court held that following the Supreme Court's decision in Muruatetu, the mandatory death sentence for robbery with violence is unconstitutional. The petitioners were entitled to have their sentences reviewed and for their mitigation to be considered. Taking into account that the petitioners were first offenders,...
Source-derived case information.
- Citation
- [2020] KEHC 755 (KLR)
- Parties
- Appellant: Peter Githuka Chege; Appellant: Kevin Maina Njeri; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Petition 82 & 84 of 2019
- Procedural Posture
- Constitutional Petition / Resentencing After Supreme Court Decision Declaring Mandatory Death Sentence Unconstitutional
- Outcome
- Death sentences set aside; petitioners resentenced to 25 years' imprisonment on each count, sentences to run concurrently from 12th July 2011.
- Judges
- REA Ougo
- Legal Topics
- Resentencing, Mandatory Death Sentence, Robbery With Violence, Mitigation, Supreme Court Precedent
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Githuka Chege
Appellant
Kevin Maina Njeri
Appellant
Republic
Respondent
Procedural Posture
Constitutional Petition / Resentencing After Supreme Court Decision Declaring Mandatory Death Sentence Unconstitutional
Legal Issues
- 1 Whether the mandatory death sentence for robbery with violence is unconstitutional following the Supreme Court decision in Muruatetu.
- 2 Whether the petitioners are entitled to resentencing and mitigation.
- 3 What is the appropriate sentence for the petitioners given the circumstances of the offence and their mitigation.
Ratio Decidendi
The court held that following the Supreme Court's decision in Muruatetu, the mandatory death sentence for robbery with violence is unconstitutional. The petitioners were entitled to have their sentences reviewed and for their mitigation to be considered. Taking into account that the petitioners were first offenders, the nature of the injuries caused (classified as harm), and their personal circumstances, the court found it appropriate to set aside the death sentences and substitute them with a determinate term of imprisonment. The court sentenced each petitioner to 25 years' imprisonment on each count, to run concurrently, commencing from the original date of sentencing.
Court Disposition
Death sentences set aside; petitioners resentenced to 25 years' imprisonment on each count, sentences to run concurrently from 12th July 2011.
Orders
- The death sentence pronounced on the petitioners is set aside.
- Each petitioner is sentenced to 25 years' imprisonment on each count, sentences to run concurrently.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISII
CONSOLIDATED PETITIONS NO 82 & 84 OF 2019
PETER GITHUKA CHEGE..................1ST PETITIONER
KEVIN MAINA NJERI........................2ND PETITIONER
VERSUS
REPUBLIC..............................................RESPONDENT
JUDGMENT
1. The petitioners, PETER GITHUKA CHEGE and KEVIN MAINA NJERIwere charged with two counts of robbery with violence contrary to section 296 (2) of the Penal Code. They were both sentenced to suffer death on 12th July 2011. The petitioners then appealed to the High court and this court affirmed the sentence save that the death sentence on count II to remain in abeyance pending execution of death sentence in count I. The 2nd appellant has filed an appeal before the Court of Appeal, and the appeal is pending hearing.
2. The death sentences of both petitioners were commuted to life imprisonment by His Excellency the President.
3. The petitioners have now moved the court for resentencing seeking a reduction of their sentences.
4. The petition has been brought after the Supreme Court declared the mandatory death sentence unconstitutional in the case of Francis Karioko Muruatetu & Another v Republic SCK Pet. No. 15 OF 2015 [2017] eKLR.
5. Before the trial court the 1st petitioner during mitigation stated that he had not committed the offence while the 2nd petitioner asked the court to consider that he is a caregiver to his grandmother. The mitigation of the petitioners was not considered given that the penalty for the offence was a mandatory death sentence. The petitioners now states in mitigation that they are married with children who are in need of parental care and protection.
6. I have considered the circumstances of under which the offence was committed. I have also taken into account that two people were injured during the incident and the nature of their injuries was classified as harm. I have further considered that the petitioners were first offenders as was submitted by the prosecution at the trial court.
7. In conclusion, after considering the entirety of the facts, it is appropriate to substitute the death sentence pronounced on the petitioners. I therefore set aside the death sentence and sentence the petitioners to 25 years’ imprisonment on each count commencing from the date of sentencing before the trial court that is, from 12th July 2011. The 25 years imprisonment on each count shall run concurrently.
Dated, Signed and Delivered at KISII this 17th day of December 2020.
R.E. OUGO
JUDGE
In the presence of;
Petitioners; Peter Githuka Chege and Kevin Maina Njeri –Present
Mr. Otieno Senior Prosecution Counsel Office of the DPP
Ms. Rael Court Assistant