[2021] KEHC 4648 (KLR)
The court found that the mandatory death sentence imposed on the petitioner for robbery with violence was unconstitutional, as it was based solely on the mandatory provision of Section 296(2) of the Penal Code. This finding is grounded in the Supreme Court's decision in Muruatetu, which declared mandatory death...
Source-derived case information.
- Citation
- [2021] KEHC 4648 (KLR)
- Parties
- Appellant: Samwel Kahiga Gathire; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Criminal Petition E021 of 2021
- Procedural Posture
- Criminal Petition / Ruling on Resentencing Application
- Outcome
- Application for resentencing deferred pending further information.
- Legal Topics
- Mandatory Sentencing, Robbery With Violence, Unconstitutionality of Death Penalty
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Samwel Kahiga Gathire
Appellant
Republic
Respondent
Procedural Posture
Criminal Petition / Ruling on Resentencing Application
Legal Issues
- 1 Whether the mandatory death sentence for robbery with violence is unconstitutional following the Supreme Court decision in Muruatetu.
- 2 Whether the petitioner is entitled to resentencing based on the unconstitutionality of the mandatory death sentence.
Ratio Decidendi
The court found that the mandatory death sentence imposed on the petitioner for robbery with violence was unconstitutional, as it was based solely on the mandatory provision of Section 296(2) of the Penal Code. This finding is grounded in the Supreme Court's decision in Muruatetu, which declared mandatory death sentences unconstitutional for murder, and subsequent Court of Appeal decisions extending this reasoning to robbery with violence. However, the court deferred resentencing pending further information from both parties to determine an appropriate sentence in the circumstances.
Court Disposition
Application for resentencing deferred pending further information.
Orders
- Parties to provide further information to assist the court in determining the appropriate sentence.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KISUMU
CRIMINAL PETITION NO. E021 OF 2021
SAMWEL KAHIGA GATHIRE....................PETITIONER
-VERSUS-
REPUBLIC...............................................RESPONDENT
RULING
The Petitioner, SAMWEL KAHIGA GATHIRE has asked this Court to have him re-sentenced in conformity with the pronouncement which the Supreme Court made in the case of FRANCIS KARIOKO MURUATETU & ANOTHER Vs REPUBLIC PETITION NO. 15 OF 2015.
1. The Suprme Court declared as unconstitutional, the mandatory nature of the Death Sentence for persons convicted for the offence of Murder.
2. On the strength of that pronouncement, the Court of Appeal declared that the mandatory nature of the Death Sentence would similarly be deemed to be unconstitutional in cases where the offender had been convicted for the offence of Robbery with Violence.
3. As the Petitioner was sentenced to suffer death as by law prescribed, following his conviction for the offence of Robbery with Violence, this court finds that the said sentence was unconstitutional, because it was imposed on the grounds that that was the mandatory prescribed sentence under Section 296 (2)of the Penal Code.
4. However, before the court can determine the appropriate sentence, and in order to be in a position to make the appropriate determination, the court will require further information from both the Petitioner and the Respondent.
DATED, SIGNED and DELIVERED at KISUMU This7thday of July2021
FRED A. OCHIENG
JUDGE