[2019] KEHC 12093 (KLR)
The court held that following the Supreme Court's decision in Muruatetu, the mandatory death sentence for robbery with violence is unconstitutional. The court has the mandate to resentence the Petitioner. Considering the circumstances of the offence, the Petitioner's remorse, the fact that no one was injured during...
Source-derived case information.
- Citation
- [2019] KEHC 12093 (KLR)
- Parties
- Appellant: Theophilus Muthami; Respondent: The Director of Public Prosecutions
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Petition 179 of 2018
- Procedural Posture
- Constitutional Petition / Judgment
- Outcome
- Petition allowed. Petitioner resentenced to period served and released.
- Judges
- DO Ogembo
- Legal Topics
- Mandatory Sentencing, Resentencing Guidelines, Robbery With Violence, Unconstitutionality of Death Penalty
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Theophilus Muthami
Appellant
The Director of Public Prosecutions
Respondent
Procedural Posture
Constitutional Petition / Judgment
Legal Issues
- 1 Whether the mandatory death sentence under Section 296(2) of the Penal Code is unconstitutional following the Supreme Court decision in Muruatetu.
- 2 Whether the Petitioner is entitled to resentencing and, if so, what sentence is appropriate.
Ratio Decidendi
The court held that following the Supreme Court's decision in Muruatetu, the mandatory death sentence for robbery with violence is unconstitutional. The court has the mandate to resentence the Petitioner. Considering the circumstances of the offence, the Petitioner's remorse, the fact that no one was injured during the robbery, and the agreement of both parties, the court found it just to resentence the Petitioner to the period already served, resulting in his immediate release unless otherwise lawfully held.
Court Disposition
Petition allowed. Petitioner resentenced to period served and released.
Orders
- The Petitioner is sentenced to the period already served.
- The Petitioner is hereby released and set free unless otherwise lawfully held.
Full Case Text
Judgment text and source record
21 paragraphs
THE REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MOMBASA
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO. 179 OF 2018
THEOPHILUS MUTHAMI............................................................PETITIONER
VERSUS
THE DIRECTOR OF PUBLIC PROSECUTIONS....................RESPONDENT
JUDGMENT
1. The Petitioner herein was charged and convicted with the offence of Robbery with Violence contrary to Section 296 (2) of the Penal Code in Criminal Case No. 1839 of 2003 and sentenced to death on 20/11/2003. His appeal failed and he has now filed this petition for resentencing pursuant to the Supreme Court’s decision in Francis Karioko Muruatetu & Another –vs- Republic SC PET NO. 15 & 16 of 2015 (consolidated) which decided that the mandatory aspect of the death sentence in Section 296(2) of the Penal Code is unconstitutional and that a court can impose a lesser sentence other than a death sentence.
2. Parties filed submissions on the resentencing. Mr. Fedha learned counsel for the prosecution agreed that the mandatory nature of the death sentence is now unconstitutional but averred that the Petitioner committed a heinous offence and should be jailed for the time he has already served. The Petitioner agreed with the prosecutor on the length of sentence.
The Determination
3. This court agrees with the Petitioner and with the prosecution that it has the mandate to resentence the Petitioner.
4. The court also agrees with the prosecution that the Petitioner be sentenced to the period of 16 years already served. The Petitioner is remorseful. He robbed using a knife but nobody was injured in the robbery.
5. The upshot is that the Petitioner is sentenced for the period already served with the result that he is hereby released and set free unless otherwise lawfully held.
Dated, Signed and Delivered in Mombasa this 5th day of November, 2019.
E. K. O. OGOLA
JUDGE
In the presence of:
Mr. Fedha for DPP
Petitioner in person
Mr. Kaunda Court Assistant