[2019] KEHC 11618 (KLR)
The court found that while the petitioner had demonstrated good conduct in prison and had already served 25 years, the gravity of the offence—a premeditated murder of a minor—necessitated a deterrent sentence. Applying the Supreme Court's guidance in Muruatetu, the court exercised its discretion to impose a definite...
Source-derived case information.
- Citation
- [2019] KEHC 11618 (KLR)
- Parties
- Petitioner: Pilot Mwambingu Mjomba; Respondent: Director of Public Prosecution
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Petition 105 of 2018
- Procedural Posture
- Constitutional Petition / Resentencing Judgment
- Outcome
- Petition for resentencing allowed; petitioner resentenced to 35 years imprisonment including time already served.
- Judges
- DO Ogembo
- Legal Topics
- Right to Fair Trial, Sentencing Principles, Murder Offences, Supervisory Jurisdiction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Pilot Mwambingu Mjomba
Petitioner
Director of Public Prosecution
Respondent
Procedural Posture
Constitutional Petition / Resentencing Judgment
Legal Issues
- 1 Whether the mandatory death sentence for murder is unconstitutional in light of the Supreme Court decision in Francis Karioko Muruatetu v Republic.
- 2 Whether the period already served by the petitioner should be considered sufficient punishment.
- 3 What is the appropriate sentence for the petitioner given the circumstances of the offence and his conduct in prison.
Ratio Decidendi
The court found that while the petitioner had demonstrated good conduct in prison and had already served 25 years, the gravity of the offence—a premeditated murder of a minor—necessitated a deterrent sentence. Applying the Supreme Court's guidance in Muruatetu, the court exercised its discretion to impose a definite term of imprisonment rather than the mandatory death penalty. Balancing the petitioner's reformation and the seriousness of the crime, the court sentenced him to 35 years imprisonment, inclusive of time already served.
Court Disposition
Petition for resentencing allowed; petitioner resentenced to 35 years imprisonment including time already served.
Orders
- The petitioner is sentenced to 35 years imprisonment, inclusive of time already served.
- The right of appeal may be exercised within 14 days.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MOMBASA
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO. 105 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: ARTICLE 22(1) OF THE CONSTITUTION
AND
IN THE MATTER OF: ARTICLE 23(1) OF THE CONSTITUTION
AND
IN THE MATTER OF: ARTICLES 19, 20, 21, 22, 23, 24, 25, 27, 28, 48, 50, 258 AND 259 OF THE CONSTITUTION
BETWEEN
PILOT MWAMBINGU MJOMBA........................PETITIONER
VERSUS
DIRECTOR OF PUBLIC PROSECUTION........RESPONDENT
JUDGMENT
1. The matter before the Court is for the purposes of resentencing pursuant to the Supreme Court decision in the now famous Supreme Court decision in Francis Karioko Muruatetu vs. Republic [2017] eKLR.
2. The background herein is that the Petitioner was convicted of murder contrary to Section 203 as read with Section 204 of the Penal Code. He was sentenced to death, which was later committed to life in prison. The Petitioner has been in jail for 25 years. He was convicted of murdering a 14 year old boy who was a brother to his girlfriend of 13 years. He dumped the body in a pit latrine after the murder.
3. The Petitioner alleges that he has reformed and has submitted that the 25 years he has spent in prison be deemed adequate. He was 35 years when he was convicted.
4. The prosecution submitted that the crime committed was a pre-meditated offence against a minor whose only fault was that he reported the relationship between the Petitioner and the minor girl.
5. The prosecution submitted that the Petitioner should be jailed for a total of 35 years to send a strong message to would be offenders.
6. I have carefully considered the petition and submissions of the parties. The offence committed by the Petitioner was so grave and meted against a very innocent minor. That kind of offence must be sufficiently punished so that a clear message is sent out to the public that there is no place for pre-meditated murder.
7. I have considered the age when the Petitioner was convicted. He was 35 years. He understood the consequences of his action and indeed this is why he dumped the body of his victim into a pit latrine.
8. In my view a deterrence sentence is necessary. I have considered that the Petitioner has been of good character in prison. This is a matter in which I would consider giving a sentence of 60 years. However, because the Petitioner is of good character in prison and there is a good report about him in prison, I herewith do jail him to serve a sentence of 35 years including the time already served in jail.
9. The right to appeal remains to be exercised in 14 days.
That is the Judgment of the Court.
Dated, Signed and Delivered in Mombasa this 24th day of July, 2019.
E. K. OGOLA
JUDGE
In the presence of:
Mr. Fedha for DPP
Petitioner in person
Mr. Kaunda Court Assistant