[2019] KEHC 11671 (KLR)
The court held that following the Supreme Court's decision in Francis Karioko Muruatetu & Another v Republic, the mandatory death sentence for robbery with violence is unconstitutional. The petitioner, having served 21 years in prison, demonstrated rehabilitation and positive conduct as evidenced by the Social...
Source-derived case information.
- Citation
- [2019] KEHC 11671 (KLR)
- Parties
- Applicant: Said Abeid Said; Respondent: Director of Public Prosecution
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Petition 122 of 2018
- Procedural Posture
- Constitutional Petition / Resentencing Judgment
- Outcome
- petition_allowed
- Judges
- DO Ogembo
- Legal Topics
- Mandatory Sentencing, Resentencing, Robbery With Violence, Death Penalty, Constitutional Rights, Rehabilitation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Said Abeid Said
Applicant
Director of Public Prosecution
Respondent
Procedural Posture
Constitutional Petition / Resentencing Judgment
Legal Issues
- 1 Whether the mandatory death sentence for robbery with violence is unconstitutional following the Supreme Court decision in Francis Karioko Muruatetu & Another v Republic.
- 2 Whether the petitioner is entitled to resentencing and immediate release based on time already served and evidence of rehabilitation.
Ratio Decidendi
The court held that following the Supreme Court's decision in Francis Karioko Muruatetu & Another v Republic, the mandatory death sentence for robbery with violence is unconstitutional. The petitioner, having served 21 years in prison, demonstrated rehabilitation and positive conduct as evidenced by the Social Inquiry Report and Prison Progress Report. The court found that the petitioner had suffered sufficient retribution and was reformed. Consequently, the court resentenced the petitioner to 21 years imprisonment, which he had already served, and ordered his immediate release unless otherwise lawfully held.
Court Disposition
petition_allowed
Orders
- The petitioner is resentenced to 21 years imprisonment.
- Having served the entire sentence, the petitioner is to be forthwith set free and released from prison unless otherwise lawfully held.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MOMBASA
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO. 122 OF 2018
SAID ABEID SAID........................................................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 offence of robbery with violence contrary to Section 296 (2) of the Penal Code and thereafter sentenced to mandatory death sentence in Criminal Case No. 1020 of 1997. The particulars being that Petitioner jointly with others not before court while armed with dangerous weapons namely knives robbed Daniel Okello Omar of Kshs. 2,000/=, a wrist watch and immediately before or after the time of the robbery used actual violence to the said Daniel Okello Omar.
3. The charge was proved and the Petitioner was jailed to suffer death and the sentence was confirmed in appeal.
4. 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.
5. Mr. Fedha learned counsel for the Director of Public Prosecution has submitted that the Petitioner be sentenced to the 21 years he has already served in the prison.
6. I have considered the submissions. The Petitioner was involved in a heinous offence in which he threatened violence but we thank God he did not harm anybody.
7. The Petitioner has been in jail for 21 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. I have also considered the Social Inquiry Report filed herein on 19th September, 2019 and the Prison Progress Report. Both reports speak favourably of the Petitioner and urge his early release from prison.
8. The Petitioner is accordingly hereby sentenced to 21 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 20th day of September, 2019.
E. K. OGOLA
JUDGE
In the presence of:
Mr. Fedha for DPP
Petitioner in person
Mr. Kaunda Court Assistant