[2021] KEHC 9562 (KLR)
The court found that, following the Supreme Court's decision in Muruatetu, the mandatory death sentence imposed on the petitioner was unconstitutional. Considering the petitioner's 19 years of imprisonment, his remorse, and the prosecution's concession, the court held that the time already served was adequate...
Source-derived case information.
- Citation
- [2021] KEHC 9562 (KLR)
- Parties
- Appellant: Shariti Juma Kushinda; Respondent: Director of Public Prosecution
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Petition 189 of 2018
- Procedural Posture
- Criminal Resentencing / Judgment
- Outcome
- death sentence set aside; petitioner resentenced to time served and released
- 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
Shariti Juma Kushinda
Appellant
Director of Public Prosecution
Respondent
Procedural Posture
Criminal Resentencing / Judgment
Legal Issues
- 1 Whether the mandatory death sentence for robbery with violence under Section 296(2) of the Penal Code is constitutional in light of the Supreme Court decision in Muruatetu.
- 2 Whether the petitioner is entitled to resentencing and release based on time already served.
Ratio Decidendi
The court found that, following the Supreme Court's decision in Muruatetu, the mandatory death sentence imposed on the petitioner was unconstitutional. Considering the petitioner's 19 years of imprisonment, his remorse, and the prosecution's concession, the court held that the time already served was adequate punishment. The death sentence was set aside and substituted with a sentence of time served, resulting in the petitioner's immediate release unless otherwise lawfully held.
Court Disposition
death sentence set aside; petitioner resentenced to time served and released
Orders
- The death sentence imposed on the petitioner is set aside.
- The petitioner is sentenced to the period already served in prison.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
PETITION NO. 189 OF 2018 CONSOLIDATED WITH
PETITION NO. 237 OF 2019
SHARITI JUMA KUSHINDA............................PETITIONER
VERSUS
DIRECTOR OF PUBLIC PROSECUTION....RESPONDENT
JUDGMENT ON RESENTENCING
1. The Petitioner herein Shariti Juma Kushinda was charged 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 2nd day of June 2000 at 4. 00 p.m. at Pogwe Village Diani Tiwi in Kwale District within Coast Province, jointly with others not before court being armed with offensive weapon namely knife robbed Mariam Mwajabuni a wrist watch make quartz and 1 kg of meat all valued at Kshs. 2,150/= and at or immediately after the time of such robbery threatened to used actual violence to the said Mariam Mwajabuni. He was convicted and sentenced to suffer death.
3. His appeal to the High Court and Court of Appeal were both dismissed and sentence upheld.
4. The Petitioner is now in this court pursuant to the Supreme Court decision in Francis Karioko Muruatetu & Another vs. Republic [2017] eKLR in which the apex court found the mandatory nature of the death sentence unconstitutional.
5. When the matter came for resentencing, Mr. Fedha, learned prosecutor submitted that the Petitioner, having served 19 years in jail, should be jailed for the time served. I have accepted the submission by the learned prosecutor. The Petitioner has served adequate time. He is also remorseful and now states that he shuns crime.
6. I therefore hereby set aside the death sentence imposed on the Petitioner by the trial court. Instead thereof I jail the Petitioner for the time served, with the result that the Petitioner is hereby set free and released from prison unless otherwise lawfully held.
7. This Judgment applies to both Petition No. 189 of 2018 and Petition No. 237 of 2019.
Dated, Signed and Delivered at Mombasa this 21st day of January, 2021.
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