[2021] KEHC 8433 (KLR)
The court found that the mandatory death sentence for robbery with violence is unconstitutional following the Supreme Court's decision in Muruatetu. The court considered the serious nature of the offence, the violence inflicted on the complainant, and the need for a deterrent sentence. Mitigating factors such as the...
Source-derived case information.
- Citation
- [2021] KEHC 8433 (KLR)
- Parties
- Appellant: Suleiman Mwachingoze Mwaulidi; Respondent: Director of Public Prosecution
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Petition 79 of 2018
- Procedural Posture
- Resentencing Application / Judgment
- Outcome
- resentencing granted; death sentence set aside; 15 years imprisonment imposed from date of arraignment
- Judges
- DO Ogembo
- Legal Topics
- Resentencing, Mandatory Sentences, Robbery With Violence, Mitigation Factors
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Suleiman Mwachingoze Mwaulidi
Appellant
Director of Public Prosecution
Respondent
Procedural Posture
Resentencing Application / Judgment
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 Petitioner upon resentencing, considering the circumstances and mitigating factors.
Ratio Decidendi
The court found that the mandatory death sentence for robbery with violence is unconstitutional following the Supreme Court's decision in Muruatetu. The court considered the serious nature of the offence, the violence inflicted on the complainant, and the need for a deterrent sentence. Mitigating factors such as the Petitioner being a first offender and the time already served were taken into account. The court determined that a sentence of 15 years imprisonment from the date of arraignment was appropriate, replacing the previous death sentence. The Petitioner is also entitled to remission of sentence if he meets the statutory conditions.
Court Disposition
resentencing granted; death sentence set aside; 15 years imprisonment imposed from date of arraignment
Orders
- The Petitioner's death sentence is set aside.
- The Petitioner is resentenced to 15 years imprisonment from the date of arraignment.
Full Case Text
Judgment text and source record
36 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CONSTITUTIONAL AND JUDICIAL REVIEW DIVISION
PETITION NO. 79 OF 2018
SULEIMAN MWACHINGOZE MWAULIDI..............................................PETITIONER
VERSUS
DIRECTOR OF PUBLIC PROSECUTION...............................................RESPONDENT
JUDGMENT ON RESENTENCING
1. The Petitioner together with his colleague were charged, and convicted of the offence of robbery with violence contrary to Section 296 (2) of the Penal Code. His Appeal to the High Court was heard and dismissed.
2. The Petitioner has now petitioned this Court for review of sentence in view of the Supreme Court declaration in Francis Karioko Muruatetu & Another v Republic SCK Pet. No. 15 of 2015 (2017) eKLR,which decided that mandatory nature of any sentence is unconstitutional.As a consequence, in the case of William Okungu Kittiny v Republic Kisumu Criminal Appeal No. 56 of 2013 [2018] eKLR, the Court of Appeal applied the Muruatetudecision mutatis mutandis to the provisions of Section 296 (2) of the Penal Code which imposes a mandatory death penalty for the offence of robbery with violence. The Petitioners are seeking that the death sentences imposed on them be set aside and for the Court to impose an appropriate sentence.
3. The facts of the case against the Petitioner were that, on 19/12/2012 at 3 am, he and others while armed with a metal rod, robbed the complainant of his motorcycle Registration KMCX 156T and that immediately before or immediately after the time of such robbery injured the complainant by hitting him on the head using the metal rod.
4. The Petitioner and his colleague were sentenced to death by the magistrate’s Court on 30/4/2015 for the reason that death sentence was mandatory for the offence of robbery with violence. So the Petitioner has been in custody and in jail cumulatively for 9 years.
5. The Petitioner when offered an opportunity to mitigate, he merely stated that he was not satisfied with the judgment. However, the prosecution recommended that the Petitioner be treated as a first offender. Nevertheless, the Petitioner submitted that he is the sole breadwinner of his young family, and that his family is currently destitute. The Petitioner therefore prays for a non-custodial sentence.
6. Mr. Fedha, Learned Counsel for the prosecution (D.P.P) submitted that taking into account the circumstances surrounding the Petitioner’s charge, a deterrent sentence of 25 years including time served would be adequate. Further, the Petitioner might benefit from the provision of Section 46 of the Prison Act.
7. I have considered The Sentencing Policy Guidelines, 2016and its application, which is intended to promote transparency, consistency, and fairness in sentencing (See Michael Kathewa Laichena & another v Republic [2018] eKLR).
8. Further, In Francis Karioko Muruatetu & Another v Republic (Supra) the Supreme Court stated the following guidelines as mitigating factors in a re-hearing sentence for the conviction of a murder charge: -
(a) age of the offender;
(b) being a first offender;
(c) whether the offender pleaded guilty;
(d) character and record of the offender;
(e) commission of the offence in response to gender-based violence;
(f) remorsefulness of the offender;
(g) the possibility of reform and social re-adaptation of the offender and
(h) any other factor that the Court considers relevant.
9. From the evidence of the complainant, and taking into consideration, the serious nature of the offence, and the violence meted out on the complainant, I am of the considered opinion that apart from death sentence, the Petitioner deserves a deterrent sentence, which should be a lesson to would-be offenders. I re-sentence the Petitioner to15 yearsimprisonment from date of his arraignment in Court. See Nickson Ligakha & another v Republic [2020] eKLRwhere the Court of Appeal sentenced the Appellant to 15 years imprisonment.
10. For avoidance of doubt, the Petitioner’s sentence having been commuted to a definite imprisonment term the Petitioner is also entitled to benefit from remission of sentence if he meets the conditions. It is so ordered.
Right of appeal to be exercised within fourteen (14) days.
That is the Judgment of the Court.
DATED, SIGNED AND DELIVERED AT MOMBASA THIS 18TH DAY OF MARCH, 2021.
E. K. OGOLA
JUDGE
Judgment delivered via MS Teams in the presence of:
Mr. Fedha for State
Petitioner in person
Ms. Peris Court Assistant