[2019] KEHC 12012 (KLR)
The court found that, following the Supreme Court's guidance in Francis Karioko Muruatetu v Republic, mandatory death sentences are unconstitutional and courts must consider mitigating factors, including mental health and time served. The petitioner had served approximately 27 years, had been rehabilitated, and was...
Source-derived case information.
- Citation
- [2019] KEHC 12012 (KLR)
- Parties
- Petitioner: Ramadhan Kombe; Respondent: Director of Public Prosecution
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Petition 74 of 2018
- Procedural Posture
- Constitutional Petition / Judgment
- Outcome
- Petition allowed in part; detention at the President's pleasure set aside; petitioner sentenced to 29 years imprisonment from date of arraignment.
- Judges
- DO Ogembo
- Legal Topics
- Resentencing, Mandatory Death Sentence, Mitigating Factors, Mental Health in Criminal Law
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ramadhan Kombe
Petitioner
Director of Public Prosecution
Respondent
Procedural Posture
Constitutional Petition / Judgment
Legal Issues
- 1 Whether the petitioner is entitled to resentencing following the Supreme Court decision in Francis Karioko Muruatetu v Republic.
- 2 Whether the period spent in custody should be considered in determining the appropriate sentence.
- 3 Whether the petitioner's mental health and rehabilitation status should mitigate the sentence.
Ratio Decidendi
The court found that, following the Supreme Court's guidance in Francis Karioko Muruatetu v Republic, mandatory death sentences are unconstitutional and courts must consider mitigating factors, including mental health and time served. The petitioner had served approximately 27 years, had been rehabilitated, and was of sound mind. The court considered the gravity of the offence, the petitioner's mental state, and the need for a definite sentence. Detention at the President's pleasure was set aside as unconstitutional. The court determined that a definite custodial sentence of 29 years from the date of arraignment was appropriate, balancing the seriousness of the crime with the petitioner's...
Court Disposition
Petition allowed in part; detention at the President's pleasure set aside; petitioner sentenced to 29 years imprisonment from date of arraignment.
Orders
- The petitioner's detention at the President's pleasure is set aside.
- The petitioner is sentenced to 29 years imprisonment from the date of arraignment in court.
Full Case Text
Judgment text and source record
34 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MOMBASA
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO. 74 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: ARTICLES 19, 20, 21, 22, 23, 24, 25, 27, 28, 48, 50, 258 AND 259 OF THE CONSTITUTION
BETWEEN
RAMADHAN KOMBE...................................................PETITIONER
VERSUS
DIRECTOR OF PUBLIC PROSECUTION...............RESPONDENT
JUDGMENT
1. The Petitioner herein seeks a resentencing pursuant to the Supreme Court decision in Francis Karioko Muruatetu vs. Republic [2017] eKLR.
2. The Petitioner was tried and convicted of the offence of Murder in Mombasa High Court Criminal Case No. 48 of 1994 and sentenced to death and has been in jail for 17 years, after losing appeals both in the High Court and in the Court of Appeal and thereby exhausted his Appeal process. The Petitioner murdered his two young children and viciously attacked his then wife and his father- in- law before he was repulsed and had to run away. Later when examined by a psychiatrist, it was established that he was suffering from varied psychological problems
3. Mr. Fedha for the prosecution prays for a deterrent sentence of 50 years including the 26 years served as the Petitioner brutally murdered two minors.
4. The Petitioner submits that the trial Court failed to consider the mitigating factors as part of his trial process and that the prison doctor concerned with his mental status has approved and recommended that he is of stable mental capacity and he is ready to be re-integrated back to the society
5. I have carefully considered the issue at hand. Under the proviso to section 333(2) of the Criminal Procedure Code (Chapter 75 of the Laws of Kenya), this Court is entitled to take into account the period the petitioner has spent in custody in determining the sentence. I have noted that the Petitioner has been in custody for approximately 27 years since his arrest. The aim of punishment is community protection, deterrence, retribution, rehabilitation, restorative Justice and reformation.
6. The social enquiry report dated 17. 9.19 from the Probation and Aftercare Services indicates that the Petitioner has recovered from his mental problems and he is now of sound mind. He does not pose any risk to others and that he has been rehabilitated and his family in Mombasa is ready and willing to receive him back to the society.
7. His Prison’s Progress Report indicates that he has undergone counselling and he is psychological stable and he manages his anger well and is of good discipline.
8. I am aware that detention at the president’s pleasure has been declared unconstitutional –See. A.O.O. vs. 6 others vs Attorney General & another [2017]
9. I have carefully considered the Petition, submissions by parties and relevant judicial authorities on resentencing for similar offences. I have also considered the gravity and mental state of the accused and the time served in prison. I do find that it is judicious to give a definite sentence in cases concluded under Section 166(1) of the CPC. After so doing, the Court becomes functus officio and should let the executive carry out its obligation under Section 166(2) to (7) of the CPC.
10. In Charles Lucheti & 3 others v Republic [2019] Eklr,the Court of Appeal held as follows…
“we nonetheless set aside his detention at the President’s pleasure as the sentence. In lieu thereof we direct that he be detained for 15 years. As for the 2nd and 3rd appellants, we set aside the sentence of death imposed on them and instead sentence them to 20 years imprisonment respectively.”
11. In the premises, I set aside the Petitioner’s detention at the President’s pleasure. In lieu thereof I direct that the Petitioner be detained for 29 years from the date of his arraignment in Court. Right of Appeal in 14 days.
That is the Judgment of the Court.
Dated, Signed and Delivered at Mombasa this 20th day of November 2019.
E. K. OGOLA
JUDGE
In the presence of:
Mr. Fedha for DPP
Petitioner in person
Mr. Kaunda Court Assistant