[2019] KEHC 2432 (KLR)
The court found that, following the Supreme Court decision in Francis Karioko Muruatetu v Republic, the mandatory death sentence for robbery with violence is unconstitutional and the court has discretion to resentence. In exercising this discretion, the court considered the period already served (12 years), the...
Source-derived case information.
- Citation
- [2019] KEHC 2432 (KLR)
- Parties
- Petitioner: Thomas Morara Nyambega; Respondent: Director of Public Prosecution
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Petition 142 of 2018
- Procedural Posture
- Constitutional Petition / Judgment
- Outcome
- Death sentence set aside; substituted with sixteen (16) years imprisonment with eligibility for remission.
- Judges
- DO Ogembo
- Legal Topics
- Resentencing, Robbery With Violence, Mandatory Sentences, Mitigation and Remission, Prisoner Rehabilitation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Thomas Morara Nyambega
Petitioner
Director of Public Prosecution
Respondent
Procedural Posture
Constitutional Petition / Judgment
Legal Issues
- 1 Whether the petitioner is entitled to resentencing following the Supreme Court decision in Francis Karioko Muruatetu v Republic.
- 2 Whether the period spent in custody and evidence of reformation should be considered in resentencing for robbery with violence.
- 3 What is the appropriate sentence in light of the circumstances and mitigation presented.
Ratio Decidendi
The court found that, following the Supreme Court decision in Francis Karioko Muruatetu v Republic, the mandatory death sentence for robbery with violence is unconstitutional and the court has discretion to resentence. In exercising this discretion, the court considered the period already served (12 years), the petitioner's remorse, rehabilitation efforts, and positive reports from the prison and probation services. The court also weighed the seriousness of the offence, the absence of physical injury to victims, and the recovery of stolen property. Balancing these factors, the court determined that the death sentence should be set aside and substituted with a term of sixteen years...
Court Disposition
Death sentence set aside; substituted with sixteen (16) years imprisonment with eligibility for remission.
Orders
- The death sentence imposed on the petitioner is set aside.
- The petitioner is sentenced to sixteen (16) years imprisonment from the date of conviction.
Full Case Text
Judgment text and source record
36 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO. 142 OF 2018
IN THE MATTER OF: THE CONSTITUTION OF KENYA 2010 (SUPERVISORY
JURISDICTIONAND PROTECTIONOF FUNDAMENTAL RIGHTS AND FREEDOM
OF AN INDIVIDUAL) HIGH COURT PRACTICE AND PROCEDURE RULES 2013
AND
IN THE MATTER: OF: ARTICLE 22(1) OF THE CONSTITUTION
AND
IN THE MATTER OF: ARTICLES 19, 20, 21, 22, 23, 24, 25,
27, 28, 48,50, 258 AND 259 OF THE CONSTITUTION
BETWEEN
THOMAS MORARA NYAMBEGA.............................................PETITIONER
VERSUS
DIRECTOR OF PUBLIC PROSECUTION...............................RESPONDENT
JUDGMENT
1. The Petitioner herein seeks a resentencing pursuant to the Supreme Court decision in Francis Karioko Muruatetu vs. Republic [2017] eKLR.
2. The Petitioner was tried and convicted of the offence of robbery with violence in the Mombasa Chief Magistrate Court Criminal Case No. 2177 of 2007. He was sentenced to death and has been in jail for 12 years and thereby exhausted his Appeal process. The Petitioner was involved in two counts of robbery with violence where he jointly with others armed with pistols robbed their victims of their foreign currency and mobile phones all valued at Kshs. 14,590,330/=.and at or immediately after the time of robbery threatened to use actual force to the said victim.
3. Mr. Fedha for the prosecution prays for a deterrent sentence of 23 years since there is no evidence that he has reformed.
4. The Petitioner submits that nobody was injured during the robbery and he did not benefit from the crime as all the money was recovered from him. He also submitted that he was a first offender and that he is very remorseful, repentant and greatly regrets committing the offence. He further submits that the 12 years he has done in jail is enough punishment and that he has reformed through the rehabilitation programmes initiated by the prison department, he has studied religious teachings and obtained a certificate and has also studied a paralegal course and acquired skills which can help him earn a living for himself and him family and provide school fees for his children once set free.
5. I have carefully considered the issue at hand. Under the proviso to section 333(2) of the Criminal Procedure Code (Chapter 75 of the Laws of Kenya), the court is entitled to take into account the period the petitioner has spent in custody in determining the sentence. I have noted that the Petitioner has been in custody for approximately 12 years. The aim of punishment is community protection, deterrence, retribution, rehabilitation, restorative Justice and reformation.
6. The Probation Report dated 21st August 2019 about the Petitioner indicates that the Petitioner is God fearing and that he is positive for release.
7. His Prison’s Progress Report indicates that he is of good conduct as he has been baptized, has undergone two theological biblical training, he is an educator within Shimo la Tewa Prison to new inmates on legal matters and he is remorseful.
8. I have considered judgments of Superior Courts that are intended to ensure consistency and fairness. In the case of Wycliffe Wangusi Mafura v Republic ELD CA Criminal Appeal No. 22 of 2016 [2018] eKLR, the Court of Appeal imposed a sentence of 20 years where the appellant was involved in robbing an Mpesa shop with the use of a firearm with which he threatened the attendant but was caught before he inflicted any violence on her.
9. I have carefully considered the petition and submissions of parties, and relevant judicial authorities on resentencing for similar offences. I have also considered mitigating and aggravating factors, the fact that the Petitioner has undertaken courses as a way of reformation. I have also considered the prison Progress Report on the prisoner which has lauded his counselling and para-legal skills and services to the prisoners. I have also over the time seen his demeanour in court and his demonstrated willingness to help his fellow inmates. I am satisfied that he Petitioner is indeed reformed, and if his services to fellow prisoners were the only factor to count, I would altogether release the petitioner. However, the Petitioner must still adequately pay for his crime. It is indeed in the consideration of above premises that I now set aside the death sentence imposed on the Petitioner and substitute there for a term of sixteen (16) years imprisonment.
10. The Petitioner is also entitled to benefit from remission of sentence as provided under Section 46 of the Prisons Act if he meets the conditions.
That is the Judgment of the Court.
Dated, Signed and Delivered at Mombasa this 7th day of November 2019.
E. K. OGOLA
JUDGE
In the presence of:
Mr. Fedha for DPP
Petitioner in person
Mr. Kaunda Court Assistant