[2020] KEHC 711 (KLR)
The court found that the mandatory death sentence previously imposed on the Petitioner was unconstitutional following the Supreme Court's decision in Muruatetu. The court considered the Petitioner's demonstrated remorse, the fifteen years already served, and the need to decongest prisons during the Covid-19...
Source-derived case information.
- Citation
- [2020] KEHC 711 (KLR)
- Parties
- Appellant: Seif Hamed Abdallah; Respondent: Director of Public Prosecution
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Petition 7 of 2019
- Procedural Posture
- Constitutional Petition / Resentencing After Supreme Court Decision
- Outcome
- Petition allowed; death sentence set aside; Petitioner resentenced to 15 years imprisonment and released.
- Judges
- DO Ogembo
- Legal Topics
- Resentencing, Mandatory Death Sentence, Robbery With Violence, Constitutional Rights, Penal Code Section 296 2
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Seif Hamed Abdallah
Appellant
Director of Public Prosecution
Respondent
Procedural Posture
Constitutional Petition / Resentencing After Supreme Court Decision
Legal Issues
- 1 Whether the mandatory death sentence for robbery with violence is unconstitutional in light of the Supreme Court decision in Francis Karioko Muruatetu & Another v Republic.
- 2 Whether the period already served by the Petitioner constitutes adequate punishment for the offence committed.
- 3 Whether the Petitioner should be resentenced and released given his demonstrated remorse and the context of the Covid-19 pandemic.
Ratio Decidendi
The court found that the mandatory death sentence previously imposed on the Petitioner was unconstitutional following the Supreme Court's decision in Muruatetu. The court considered the Petitioner's demonstrated remorse, the fifteen years already served, and the need to decongest prisons during the Covid-19 pandemic. The court held that the time already served constituted adequate punishment for the offence of robbery with violence and that further incarceration was unnecessary. Consequently, the death sentence was set aside, the Petitioner was resentenced to fifteen years imprisonment, and, having already served that period, was ordered to be released unless otherwise lawfully held.
Court Disposition
Petition allowed; death sentence set aside; Petitioner resentenced to 15 years imprisonment and released.
Orders
- The death sentence imposed upon the Petitioner is set aside.
- The Petitioner is sentenced to serve 15 years in jail from the date of conviction.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO. 07 OF 2019
SEIF HAMED ABDALLAH................................PETITIONER
VERSUS
DIRECTOR OF PUBLIC PROSECUTION ....RESPONDENT
JUDGMENT
1. The Petitioner herein SEIF HAMED ABDALLA was charged and convicted with the offence of robbery with violence contrary to Section 296 (2) of the Penal Code and was sentenced to death by the Principal Magistrate. His appeals to High Court and to the Court of Appeal were dismissed.
2. The Petitioner is now in this court for resentencing pursuant to the Supreme Court decision in Francis Karioko Muruatetu & Another v Republic [2017] eKLR in which the Apex Court found that the mandatory nature of the death sentence is unconstitutional.
3. I have considered submissions on resentencing both from the Petitioner and from the Director of Public Prosecutions. The Petitioner has been in jail for fifteen (15) years now. He submits that he has reformed, and that he should be set free to take care of his aging parents and his young family. The Prison Progress Report states that the Petitioner is polite and well behaved in prison.
4. On his part Mr. Fedha, learned Counsel for the DPP submitted that the Petitioner should be jailed for twenty years from the date of conviction given the seriousness of the offence.
5. I have carefully considered these submissions. The objective of sentence is to meet out proper retribution for the offence. It also aims at reforming the convict.
6. The Petitioner appears to me to be remorseful of his past. The 15 years he has spent in jail is not a short time. During that time, I believe he has had a chance to reflect on his life.
7. The Petition is also being heard during the Covid-19 pandemic, and it is important that when possible, the courts try to decongest our prisons.
8. I am satisfied that the 15 years already served by the Petitioner is adequate punishment for the crime he was convicted for, especially in this Covid-19 times.
9. I therefore hereby set aside the death sentence imposed upon the Petitioner. Instead thereof I sentence the Petitioner to serve 15 years in jail. And the Petitioner having already served the said 15 years, he is now hereby set free and released from prison unless 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 via MS teams in the presence of:
Petitioner in person via video link
Mr. Fedha for DPP
Ms. Peris Court Assistant