[2019] KEHC 2634 (KLR)
The court found that the mandatory death sentence imposed on the Petitioner under Section 296(2) of the Penal Code was unconstitutional, following the Supreme Court's decision in Francis Karioko Muruatetu & Another v Republic. The court held that the Petitioner was entitled to resentencing, taking into account his...
Source-derived case information.
- Citation
- [2019] KEHC 2634 (KLR)
- Parties
- Petitioner: Wilson Githinji Mwangi; Respondent: Director of Public Prosecutions
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Petition 66 of 2017
- Procedural Posture
- Constitutional Petition / Judgment
- Outcome
- petition allowed in part; death sentence set aside; Petitioner resentenced to time served and released unless otherwise lawfully held.
- Judges
- DO Ogembo
- Legal Topics
- Mandatory Sentencing, Death Penalty, Resentencing, Right to Fair Trial
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Wilson Githinji Mwangi
Petitioner
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 as applied to the Petitioner.
- 2 Whether the failure to consider mitigation infringed the Petitioner's constitutional rights.
- 3 What is the appropriate sentence for the Petitioner in light of the Supreme Court decision in Francis Karioko Muruatetu & Another v Republic.
Ratio Decidendi
The court found that the mandatory death sentence imposed on the Petitioner under Section 296(2) of the Penal Code was unconstitutional, following the Supreme Court's decision in Francis Karioko Muruatetu & Another v Republic. The court held that the Petitioner was entitled to resentencing, taking into account his mitigation and the period already served. The court considered the Probation Report, which confirmed the Petitioner's reformation during his 20 years in custody. Consequently, the court set aside the death sentence and substituted it with a sentence equivalent to the time already served, ordering the Petitioner's immediate release unless otherwise lawfully held.
Court Disposition
petition allowed in part; death sentence set aside; Petitioner resentenced to time served and released unless otherwise lawfully held.
Orders
- The death sentence imposed upon the Petitioner is set aside.
- The Petitioner is sentenced to the term already served in prison.
Full Case Text
Judgment text and source record
27 paragraphs
THE REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO. 66 OF 2017
WILSON GITHINJI MWANGI...................................................PETITIONER
VERSUS
THE DIRECTOR OF PUBLIC PROSECUTIONS.................RESPONDENT
JUDGMENT
1. The Petitioner herein was charged and convicted with Robbery with Violence contrary to Section 296 (2) of the Penal Code in Nyeri Chief Magistrate’s Court Criminal Case No. 1404 of 1999 and sentenced to death. The Petitioner subsequently lodged a first appeal before the High Court and a second appeal in the Court of Appeal.
2. Brief facts of the case are that on 15th July, 1999 at about 6 p.m the accused together with 3 others way laid Josephine Wanjiru Muriuki as she was climbing stairs to her home, they intercepted her and robbed her of her kiondo which contained jacket, a table cloth, a handkerchief, a packet of matches, a kilogram of sugar and a packet of omo washing powder. According to her the Appellant had a pistol which he pointed at her ear, fired but missed her as she ducked to avoid it
3. The Petitioner now claims that the sentencing to death by the trial court as well as the two appellate courts was an infringement of his fundamental rights. The Petitioner avers that the said courts interpreted the provisions of Section 296(2) of the Penal Code to mean that death sentence was the only sentence available to the Petitioner and that the said courts held the view that the death sentence under the said provisions was mandatory and no other sentence was tenable.
4. The Petitioner further claims that the said courts did not consider the Petitioner’s mitigation and as such the sentence is an infringement of the Petitioner’s rights under Articles 25 and Article 22(1) of the Constitution.
Hearing and Submissions
5. The matter came up for hearing on 18th June, 2019.
6. It was the Petitioner’s submissions that he was sentenced to death in 1999, has been in prison for 20 years. That he is 44 years and that for the 20 years he has been in custody he has reformed and has learnt carpentry and that he would wish to be released so that he goes back to his family.
7. The Respondent (DPP) through its Counsel Mr. Fedha submitted that the Petitioner at the time of committing the offence was handling a gun. Nobody was injured but he used force during the robberry. That he should be jailed for 25 fine of which should be suspended and put on probation
The Determination
8. On the issue of sentence, the Supreme Court case in the case of Francis Karioko Muruatetu & Another -vs- Republic [2017] eKLRdeclared the mandatory nature of the death sentence as provided for under Section 204 of the Penal Code to be unconstitutional. To that extent this court only has to resentence the Petitioner.
9. The Court on 31st, July, 2019 ordered for a Probation Report which was filed in court on 27th August, 2019. The Court having perused the same is satisfied that indeed the Petitioner has reformed. It is important to note that a result of the trial courts sentencing in 1999 the Petitioner has already served 20 years in custody. In the circumstances, I do hereby set aside the death sentence imposed upon the Petitioner and in substitution the Petitioner is hereby jailed to the term already served in prison with the result that the Petitioner is forthwith released unless otherwise lawfully held.
Dated, Signed and Delivered in Mombasa this 7th day of November, 2019.
E. K. O. OGOLA
JUDGE
In the Presence of:
Mr. Fedha for DPP
Petitioner in Person
Mr. Kaunda Court Assistant