Samuel Kariuki Kinyua v Director of Public Prosecutions

High Court of Kenya

15 December 2020

EOE. K. Ogola

599 words in judgment

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AI-assisted case brief

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The bottom line

Following the end of mandatory death sentences, courts can use the sentence given to co-accused partners to determine a fair new sentence.

What this practically means

Executive summary

The Petitioner, Samuel Kariuki Kinyua, was convicted of robbery with violence contrary to Section 296(2) of the Penal Code for jointly robbing Kazungu Randu Rashid of a Suzuki motor cycle and other items valued at Kshs. 200,000 while armed with knives at Malindi on 19th and 20th October 2003. He was sentenced to death, and his first appeal to the High Court was dismissed on 17th March 2010. He then approached the High Court at Mombasa for resentencing pursuant to the Supreme Court's decision in Francis Karioko Muruatetu & Another v Republic [2017] eKLR, which declared the mandatory death sentence unconstitutional and struck down Section 204 of the Penal Code to that extent. Ogola J took jurisdiction to reconsider the sentence. Counsel for the DPP informed the court that one co-accused, Michael Wafula Wambani, had died at Malindi Prison, while another, Josphat Musyimi Makau, had successfully petitioned in Petition No. 25 of 2019 (Malindi) and was resentenced to 16 years' imprisonment, being released on 14th April 2020. The State counsel urged that the Petitioner be released for time served on the basis of that petition. Adopting parity with the co-accused's sentence, the court sentenced the Petitioner to 16 years' imprisonment and, having already served that term, ordered his release from prison unless otherwise lawfully held. The judgment was delivered online via MS Teams in line with COVID-19 court directions, with the parties waiving compliance with Order 21 Rule 1 of the Civil Procedure Rules.

Key legal issues

Resentencing after Muruatetu

Holding

The court took jurisdiction to reconsider the death sentence imposed on the Petitioner following Muruatetu and resentenced him to the 16 years served by his co-accused, ordering release as the term was already served

Reasoning

The Petitioner was convicted of robbery with violence and sentenced to death; his first appeal was dismissed. Following Muruatetu, which struck down the mandatory death sentence, the court reconsidered sentence. Counsel for the DPP himself urged release for time served based on the co-accused's Petition No. 25 of 2019 (Malindi), in which Josphat Musyimi Makau was resentenced to 16 years and released on 14th April 2020. Adopting parity, the court imposed 16 years and, since served, ordered release.

p. 1

Legal principles established

Where a co-accused in the same offence has been resentenced to a fixed term, parity may justify imposing the same term on the petitioner

Court orders

1.The Petitioner is sentenced to serve 16 years in jail for his crime
2.The Petitioner is set free and released from prison unless otherwise lawfully held

On appeal from: null; null
Jurisdiction invoked: Resentencing jurisdiction following the Supreme Court decision in Francis Karioko Muruatetu & Another v Republic [2017] eKLR striking down the mandatory death sentence

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Samuel Kariuki Kinyua v Director of Public Prosecutions", Case Analysis (2020). Constitutional Petition No. 90 of 2019. Source:

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.