[2020] KEHC 921 (KLR)
The court held that, following the Supreme Court's decision in Muruatetu, the mandatory death sentence for robbery with violence is unconstitutional. The petitioner, having already served 16 years in prison, is entitled to benefit from resentencing in parity with his co-accused, who was resentenced to 16 years and...
Source-derived case information.
- Citation
- [2020] KEHC 921 (KLR)
- Parties
- Petitioner: Samuel Kariuki Kinyua; Respondent: Director of Public Prosecutions
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Constitutional Petition 90 of 2019
- Procedural Posture
- Constitutional Petition / Resentencing Judgment
- Outcome
- petition_allowed
- Judges
- DO Ogembo
- Legal Topics
- Robbery With Violence, Mandatory Sentencing, Resentencing, Death Penalty, Constitutional Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Samuel Kariuki Kinyua
Petitioner
Director of Public Prosecutions
Respondent
Procedural Posture
Constitutional Petition / Resentencing Judgment
Legal Issues
- 1 Whether the mandatory death sentence for robbery with violence is unconstitutional in light of the Supreme Court decision in Muruatetu.
- 2 Whether the petitioner is entitled to resentencing based on the time already served and parity with co-accused.
Ratio Decidendi
The court held that, following the Supreme Court's decision in Muruatetu, the mandatory death sentence for robbery with violence is unconstitutional. The petitioner, having already served 16 years in prison, is entitled to benefit from resentencing in parity with his co-accused, who was resentenced to 16 years and released. The court therefore resentenced the petitioner to 16 years' imprisonment, and since he had already served this period, ordered his immediate release unless otherwise lawfully held.
Court Disposition
petition_allowed
Orders
- The petitioner is resentenced to 16 years' imprisonment for robbery with violence.
- The petitioner is to be released from prison immediately unless otherwise lawfully held.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MOMBASA
CONSTITUTIONAL PETITION NO. 90 OF 2019
SAMUEL KARIUKI KINYUA................................................PETITIONER
VERSUS
DIRECTOR OF PUBLIC PROSECUTIONS......................RESPONDENT
JUDGMENT ON RESENTENCING
1. The Petitioner herein, Samuel Kariuki Kinyua was charged and convicted, with the offence of Robbery with Violence contrary to Section 296(2) of the Penal Code.
2. The particulars of the offence were that on the 19thand 20th day of October, 2003, at Naira HouseinCasuarina area in Malindi Location within Malindi Distict of the Coast Province, jointly while armed with offensive weapons namely knives, robbed Kazungu Randu Rashid of one Motor Cycle make Suzuki registration No.KAC 771M, one Alarm Control and one knife all valued at Kshs.200,000/= and at or immediately before or immediately after threatened to use violence against Kazungu Randu Rashid.
3. The Appellant also faced an alternative charge of handling stolen property contrary to Section 322 of the Penal Code. The particulars being that on the 19th and 20thday ofOctober, 2003 at BP Petrol Station Area in Malindi Location within Malindi District of the Coast province, otherwise than in the course of stealing, jointly dishonestly handled one Suzuki Motor Cycle registration No.KAC 771M, knowing or having knowledge that it was unlawfully obtained or stolen property.
4. The Petitioner was found guilty of the main charge of Robbery with Violence, convicted and sentenced to death. Being dissatisfied with the conviction, he filed an Appeal to the High Court which was dismissed on 17th March 2010.
5. The Petitioner is now in this Court for purpose of resentencing pursuant to the Supreme Court decision in Francis Karioko Muruatetu & Another vs. Republic[2017]eKLR,in which the apex court found that the mandatory nature of the death sentence was unconstitutional and struck down Section 204 of the Penal Code to the extent that it prescribed mandatory death sentence upon conviction for murder.
6. It is for this reason that I take the jurisdiction to re-consider the sentence on the Petitioner herein following the Muruatetu Case.
7. Mr. Fedha, Learned Counsel for the DPP submitted that one of the Petitioner’s co-accused Michael Wafula Wambani passed away at Malindi Prison while the 3rd Co-accused Josphat Musyimi Makau filed a Petition No.25 of 2019inMalindi Court. His Petition was allowed and he was sentenced to serve 16 years in prison. He was released on 14th April, 2020. Counsel submitted that the Petitioner be released for the time served based on Petition No.25 of 2019 (Malindi).
8. In parity with the sentence given in Petition No.25 of 2019 (Malindi) in which the Petitioner’s co-accused Josphat Musyimi Makau was sentenced to serve 16 years in jail, the Petitioner herein is hereby sentenced to serve 16 years in jail for his crime. And since he has already served the said 16 years, the Petitioner is hereby set free and released from prison unless otherwise lawfully held.
That is the Judgment of the Court.
Dated, Signed and Delivered at Mombasa this 15th day of December, 2020.
E. K. OGOLA
JUDGE
Judgment delivered in chambers via MS Teams in the presence of:
Mr. Fedha for State
Petitioner in person
Ms. Peris Court Assistant
Note:
In view of the declaration of measures restricting court operations due to
the COVID-19 pandemic and in light of the directions issued by His Lordship the Chief Justice on 15th March 2020, this Judgment has been delivered to the parties online with their consent. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules which requires that all Judgments and Rulings be pronounced in open Court.