[2019] KEHC 11674 (KLR)
The court found that, following the Supreme Court's decision in Francis Karioko Muruatetu & Another v Republic, the mandatory death sentence imposed on the petitioner for robbery with violence was unconstitutional. The court considered the petitioner's 24 years already served in prison, the absence of loss of life...
Source-derived case information.
- Citation
- [2019] KEHC 11674 (KLR)
- Parties
- Petitioner: Rashid Mwinyi Nguisa; Respondent: Director of Public Prosecution
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Petition 246 of 2018
- Procedural Posture
- Constitutional Petition / Judgment
- Outcome
- petition allowed; petitioner resentenced and released
- Judges
- DO Ogembo
- Legal Topics
- Resentencing, Mandatory Death Sentence, Robbery With Violence, Constitutional Rights, Supreme Court Precedent
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rashid Mwinyi Nguisa
Petitioner
Director of Public Prosecution
Respondent
Procedural Posture
Constitutional Petition / Judgment
Legal Issues
- 1 Whether the mandatory death sentence for robbery with violence under Section 296(2) of the Penal Code is unconstitutional in light of the Supreme Court decision in Francis Karioko Muruatetu & Another v Republic.
- 2 Whether the petitioner is entitled to resentencing based on the period already served in prison.
Ratio Decidendi
The court found that, following the Supreme Court's decision in Francis Karioko Muruatetu & Another v Republic, the mandatory death sentence imposed on the petitioner for robbery with violence was unconstitutional. The court considered the petitioner's 24 years already served in prison, the absence of loss of life during the offence, and evidence of rehabilitation and reformation. Consequently, the court exercised its discretion to resentence the petitioner to 24 years' imprisonment, which he had already served, and ordered his immediate release unless otherwise lawfully held.
Court Disposition
petition allowed; petitioner resentenced and released
Orders
- The petitioner is sentenced to 24 years in jail, deemed already served.
- The petitioner is forthwith set free and released from prison unless otherwise lawfully held.
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. 246 OF 2018
(ORIGINATING FROM CRC NO. 198/1995 IN KILIFI LAW COURTS - HON. P. M. NDUNGU [SRM])
IN THE MATTER OF: ARTICLES 19(2), (3)(a), 20(1), (2), 21(1), 22(1) (3) (d), 23(1), (f), 25(a) (c), 26(1), 27(1), (2), 28, 29, (6) (d) (f), 48, 50 (2) (a), (p) (q) OF THE CONSTITUTION OF KENYA 2010
AND
IN THE MATTER: OF: SECTIONS 216 AND 329 OF THE CPC
AND
IN THE MATTER OF: SECTION 296(2) OF THE PENAL CODE
BETWEEN
RASHID MWINYI NGUISA......................................PETITIONER
VERSUS
DIRECTOR OF PUBLIC PROSECUTION...........RESPONDENT
JUDGMENT
1. The matter before the Court is a petition by the Petitioner for resentencing.
2. The Petitioner herein was charged with three counts of robbery with violence contrary to Section 296 (2), particulars being on 31st December, 1994 at about 9. 30 a.m. Tiwi Mapriver, Tiwi Location in Kwale District within Coast Province jointly with others not before court robbed Stephen Salmon of his two suit cases containing assorted clothes, one video camera, CD player, two wrist watches and other personal effects all valued at Kshs. 329,000/= and at or immediately before or immediately after the time of such robbery used actual violence to the said Stephen Salmon.
3. The particular of the second count was that on the 31st December, 1994 at 9. 30 a.m. at Tiwi Mapriver, Tiwi Location in Kwale District within Coast Province jointly with others not before court robbed Tonny Beal of his hand bag containing assorted clothes, one Sony CD player, one wrist watch, one Olympic Zoon camera and a Sony Recorder and other personal effects all valued at Kshs. 250,730/= and at or immediately before or after the time of such robbery threatened to use actual violence to the said Tonny Beal.
4. The particular of the third count was that on the 31st December, 1994 at 9. 30 a.m. at Tiwi Mapriver, Tiwi Location in Kwale District within Coast Province jointly with others not before court robbed Sally Kirkup one suitcase containing assorted clothes, one camera Nichon, one wrist watch and other personal effects all valued at Kshs. 139, 322/= and at or immediately before or after the time of such robbery threatened to use actual violence to the said Sally Kirkup.
5. The charge was proved and the Petitioner was jailed to suffer death. The sentence was confirmed in appeal.
6. The Petitioner is now before this Court pursuant to the Supreme Court decision in Francis Karioko Muruatetu & Another vs. Republic [2017] eKLR in which the Court declared mandatory death sentence to be unconstitutional.
7. Mr. Fedha learned counsel for the Director of Public Prosecution has submitted that the Petitioner be sentenced to the 24 years he has already served in the prison.
8. I have considered the submissions. The Petitioner was involved in a heinous offence in which he threatened violence but we thank God nobody died in the process.
9. The Petitioner has been in jail for 24 years. In my view, the Petitioner has learned from his mistake and has also suffered retribution, has been rehabilitated and I believe is also reformed.
10. The Petitioner is accordingly hereby sentenced to 24 years in jail, and having served the entire sentence the Petitioner is hereby forthwith set free and released from prison unless otherwise lawfully held.
That is the Judgment of the Court.
Dated, Signed and Delivered in Mombasa this 16th day of September, 2019.
E. K. OGOLA
JUDGE
In the presence of:
Mr. Fedha for DPP
Mr. Magolo for Petitioner
Mr. Kaunda Court Assistant