[2019] KEHC 11425 (KLR)
The court found that while the petitioner had been convicted of a grievous and premeditated murder, the mandatory death sentence was no longer constitutionally tenable. Exercising its discretion, the court considered the gravity of the offence, the vulnerability of the victim, and the need for deterrence. The court...
Source-derived case information.
- Citation
- [2019] KEHC 11425 (KLR)
- Parties
- Petitioner: Philip Nzaka Watu; Respondent: Director of Public Prosecution
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Petition 123 of 2018
- Procedural Posture
- Constitutional Petition / Resentencing Judgment
- Outcome
- petition partly allowed; resentencing granted
- Judges
- DO Ogembo
- Legal Topics
- Right to Fair Trial, Right to Life, Sentencing Principles, Protection of Fundamental Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Philip Nzaka Watu
Petitioner
Director of Public Prosecution
Respondent
Procedural Posture
Constitutional Petition / Resentencing Judgment
Legal Issues
- 1 Whether the mandatory death sentence imposed on the petitioner should be substituted with a determinate term of imprisonment.
- 2 Whether the circumstances of the offence warrant a sentence that reflects the gravity of the crime and deters similar offences.
Ratio Decidendi
The court found that while the petitioner had been convicted of a grievous and premeditated murder, the mandatory death sentence was no longer constitutionally tenable. Exercising its discretion, the court considered the gravity of the offence, the vulnerability of the victim, and the need for deterrence. The court accepted the prosecution's submission for a 35-year sentence, holding that this term, inclusive of time already served, was proportionate and sent a clear message against such crimes. The petitioner was granted the right to appeal within 14 days.
Court Disposition
petition partly allowed; resentencing granted
Orders
- The petitioner is sentenced to a total of 35 years' imprisonment, inclusive of time already served.
- The petitioner is granted the right to appeal within 14 days.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MOMBASA
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO. 123 OF 2018
IN THE MATTER OF: THE CONSTITUTION OF KENYA 2010 (SUPERVISORY JURISDICTION AND PROTECTION OF FUNDAMENTAL RIGHTS AND FREEDOM OF AN INDIVIDUAL) HIGH COURT PRACTICE AND PROCEDURE RULES 2013
AND
IN THE MATTER: OF: ARTICLES 20 (1) (4), 21 (1) (4) 22 (1) (3) (C) OF THE NEW CONSTITUTION OF KENYA
AND
IN THE MATTER OF: CONTRAVENTION OF FUNDAMENTAL RIGHTS AND FREEDOMS OF THE INDIVIDUAL UNDER ARTICLES 25 (A) (B) (C), 26 (1), 27 (1) (2) (4), 28 (A) (C) (D) (F), 35 (1), 48, 50 (1) (2) (P) (Q) OF THE CONSTITUTION OF KENYA
AND
IN THE MATTER OF: ARTICLES 258 (1) AND 259 (1) (3) (A) OF THE GENERAL PROVISIONS OF THE CONSTITUTION 2010
AND
IN THE MATTER OF: SECTION 329 AND 216 OF THE CRIMINAL PROCEDURE CODE
BETWEEN
PHILIP NZAKA WATU........................................PETITIONER
VERSUS
DIRECTOR OF PUBLIC PROSECUTION.....RESPONDENT
JUDGMENT
I have carefully considered the petition. The matter is for resentencing. I have considered the plea of the Petitioner. The offence committed was grievous. The sentence must be one to deter the same. A message must be sent to would be offenders that pre-meditated murder must be punished. The Petitioner murdered a dumb and deaf person. The Petitioner was already convicted to suffer death. The said death sentence must be replaced by a sentence which reflects the gravity of the offence. Although the DPP has submitted for 35 years, the offence and the way it was committed deserves a harsher punishment. However, I will accept the submission of Mr. Fedha for the DPP.
In the upshot I herewith sentence the Petitioner to a total of 35 years including all the years he has spent in prison. The Petitioner is given the right to appeal within 14 days.
That is the Judgment of the Court.
Dated, Signed and Delivered in Mombasa this 20th day of June, 2019.
E. K. OGOLA
JUDGE
In the presence of:
Mr. Fedha for DPP
Petitioner in person
Mr. Kaunda Court Assistant