The Republic of Kenya v The Director of Public Prosecutions & 1 other

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 15 th 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] eKLR declared 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 27 th 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

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