[2020] KEHC 7528 (KLR)
The court found that, following the Supreme Court's decision in Muruatetu, the mandatory death sentence imposed on the Petitioners for robbery with violence was unconstitutional. The court considered the Petitioners' remorse and the period already served, but also weighed the gravity of the offence and the need for...
Source-derived case information.
- Citation
- [2020] KEHC 7528 (KLR)
- Parties
- Petitioner: Simba Ndoro Kidunga; Petitioner: Kacha Chaka Tsuma; Respondent: Director of Public Prosecutions
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Petition 230 of 2018
- Procedural Posture
- Constitutional Petition / Resentencing Following Supreme Court Decision
- Outcome
- Death sentence set aside; Petitioners sentenced to 13 years imprisonment from date of arrest.
- Judges
- DO Ogembo
- Legal Topics
- Resentencing, Mandatory Death Sentence, Robbery With Violence, Penal Code Section 296 2
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Simba Ndoro Kidunga
Petitioner
Kacha Chaka Tsuma
Petitioner
Director of Public Prosecutions
Respondent
Procedural Posture
Constitutional Petition / Resentencing Following Supreme Court Decision
Legal Issues
- 1 Whether the mandatory death sentence for robbery with violence under Section 296(2) of the Penal Code is unconstitutional in light of the Supreme Court decision in Muruatetu.
- 2 What is the appropriate sentence for the Petitioners following the setting aside of the mandatory death sentence.
Ratio Decidendi
The court found that, following the Supreme Court's decision in Muruatetu, the mandatory death sentence imposed on the Petitioners for robbery with violence was unconstitutional. The court considered the Petitioners' remorse and the period already served, but also weighed the gravity of the offence and the need for deterrence. The court determined that a custodial sentence of 13 years from the date of arrest was appropriate, setting aside the death sentence and substituting it with a term of imprisonment.
Court Disposition
Death sentence set aside; Petitioners sentenced to 13 years imprisonment from date of arrest.
Orders
- The death sentence meted out on the Petitioners is set aside.
- The Petitioners are sentenced to 13 years imprisonment from the date of arrest.
Full Case Text
Judgment text and source record
25 paragraphs
THE REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO. 230 OF 2018
1. SIMBA NDORO KIDUNGA
2. KACHA CHAKA TSUMA...................................... PETITIONERS
VERSUS
THE DIRECTOR OF PUBLIC PROSECUTIONS....RESPONDENT
JUDGMENT
1. The Petitioners were tried and convicted for the offence of robbery with violence contrary to Section 296(2) of the Penal Code in Criminal Case Kwale Principal Magistrate No. 1292 of 2008. They were sentenced to death, and have lost all chances in appeal both at the High Court and in the Court of Appeal.
2. The Petitioners are now in this court for resentencing pursuant to the decision of the Supreme Court in Francis Karioko Muruatetu & Another vs. Republic [2017] eKLRwhich found the mandatory nature of the death sentence to be unconstitutional.
3. The Petitioners had been charged with robbing the complainant f 2 heads of cows and Kshs. 26,000/=. The complainant was the 2nd Petitioner’s father.
4. Both Petitioners submitted that they regret what they did and prayed that they be jailed for the term they have served in prison which is 11 years.
5. On his part Mr. Fedha, learned counsel for the State submitted that the Petitioners be jailed for 16 years to serve as example to would be robbers.
6. I have considered the submissions. The Petitioners appear remorseful and may have reformed. However, the offence of robbery with violence is a serious affront to the societal morals and must be punished adequately.
7. In the upshot, I hereby set aside the death sentence meted out on the Petitioners and in place thereof I jail the Petitioners to a term of 13 years from the date of arrest.
8. Right of appeal in 14 days.
Dated, Signed and Delivered at Mombasa this 11th day of March, 2020.
E. K. O. OGOLA
JUDGE
In the presence of:
Mr. Fedha for DPP
Petitioners in person
Mr. Kaunda Court Assistant