[2020] KEHC 7095 (KLR)
The court found that, following the Supreme Court's decision in Muruatetu, the mandatory death sentence for robbery with violence is unconstitutional. The court considered the petitioner's mitigation, including his claim of reformation, lack of prior offences, and family circumstances. However, the court noted the...
Source-derived case information.
- Citation
- [2020] KEHC 7095 (KLR)
- Parties
- Petitioner: Shida Kenga Mitsanze; Respondent: Director of Public Prosecution
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Petition 100 of 2018
- Procedural Posture
- Constitutional Petition / Judgment
- Outcome
- death sentence set aside; petitioner resentenced to 18 years imprisonment from date of arrest
- Judges
- DO Ogembo
- Legal Topics
- Death Penalty, Resentencing, Robbery With Violence, Mitigation of Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Shida Kenga Mitsanze
Petitioner
Director of Public Prosecution
Respondent
Procedural Posture
Constitutional Petition / 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 unconstitutionality of the mandatory death penalty.
- 3 What is the appropriate sentence considering the circumstances and mitigation.
Ratio Decidendi
The court found that, following the Supreme Court's decision in Muruatetu, the mandatory death sentence for robbery with violence is unconstitutional. The court considered the petitioner's mitigation, including his claim of reformation, lack of prior offences, and family circumstances. However, the court noted the absence of a Prisoner's Progress Report and the fact that the petitioner and his accomplices injured an innocent person during the robbery. Balancing the petitioner's circumstances with the rights of the victim, the court determined that the appropriate sentence was to replace the death penalty with a custodial sentence of eighteen years from the date of arrest.
Court Disposition
death sentence set aside; petitioner resentenced to 18 years imprisonment from date of arrest
Orders
- The death sentence is replaced with a jail term of eighteen (18) years from the date of arrest.
- Right of appeal within 14 days.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
PETITION NO. 100 OF 2018
SHIDA KENGA MITSANZE...............................PETITIONER
AND
DIRECTOR OF PUBLIC PROSECUTION.....RESPONDENT
JUDGMENT
1. The Petitioner was convicted for the offence of Robbery with Violence contrary to Section 295 as read with 296(2) of the Penal Code and sentenced to death in Mombasa Cr. Case No. 324 of 2009. He appealed in HCCRA No. 208 OF 2011 and Criminal Appeal. No. 208 of 2011. Both appeals were dismissed and sentence upheld.
2. The Petitioner has now petitioned this court for review of sentence in view of the Supreme Court declaration in Francis Kariokor Muruatetu & Another vs. Republic SCK Pet. No. 15 of 2015 (2017) eKLR.
Brief Circumstance of the offence
3. The particulars are that on 5th December, 2009 at about 9. 00 p.m. at Mtsengo Village Mwanamiga Location in Kaloleni District within Coast Province, the Petitioner jointly with others robbed Cosmas Mramba of Cash 2,800, one pair of Timberland Shoes, one jeans, one mobile phone all valued at Kshs. 6, 700 and or after immediately at the time of such robbery wounded Cosmas Mramba.
4. The Petitioner submitted that the death sentence which was commuted to life imprisonment is unconstitutional. He has now exhausted his right of appeal and approaches court to declare that the death sentence as unconstitutional and contrary to Article 50(1) and Article 25(a) of the constitution and impose an appropriate sentence upon him.
5. He further submitted that the court did not consider his mitigation as he is a first offender and has never been accused of breaking the law and at the same time he is very remorseful.
6. The prosecution submits that the Petitioner while committing the offence with the others had the intention of killing the victim; that he has been in custody for 10 years and prayed for a jail term of 25 years including the time served.
7. On his part the Petitioner apologized for the offence he committed and that he has reformed and prayed to be jailed for 15 years as he has 3 children with his wife who passed on as well as his father. He prayed to be released so that he can take care of his children and the elderly mother.
8. I have considered the Petition as well submissions of the parties. On the issue of re-sentencing the Petitioner submitted that he has reformed however there is no Prisoner’s Progress Report to support the same. This Court notes that the Petitioner and his accomplices at the time of crime injured an innocent person and so sentencing must consider the rights of the victims.
9. In conclusion, and in consideration of the facts here, this court replaces the death sentence herein, and hereby sentences the petitioner to serve a jail term of eighteen (18) years from the date of arrest.
That is the Judgment of the court.
Right of appeal in 14 days.
Dated, Signed and Delivered at Mombasa this 12th day March, of 2020.
E. K. O. OGOLA
JUDGE
In the presence of:
Petitioner in Person
Mr. Fedha for state
Mr. Kaunda –Court Assistant