REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MOMBASA CONSTITUTIONAL AND HUMAN RIGHTS DIVISION PETITION NO. 132 OF 2018 IN THE MATTER OF: THE CONSTITUTION OF KENYA 2010 (SUPERVISORY JURISDICTION AND PROTECTION OF FUNDAMENTAL RIGHTS AND FREEDOMS 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: ARTICLE 23(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 AND IN THE MATTER OF: ARTICLE 53(1) OF THE CONSTITUTION AND IN THE MATTER OF: SECTIONS 4(2)(A) AND 296(2) OF THE PENAL CODE AND IN THE MATTER OF: SECTIONS 322(2) OF THE PENAL CODE AND IN THE MATTER OF: SECTIONS 50 OF T HE EVIDENCE ACT BETWEEN HAMISI SALIM MUNYOKI.................................................PETITIONER AND
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DIRECTOR OF PUBLIC PROSECUTION........................RESPONDENT JUDGMENT 1. The matter before the Court is a petition by the Petitioner for resentencing. The Petitioner is serving a death sentence at Shimo La Tewa prison having been convicted of a charge of robbery with violence in Criminal Case No. SPMC 730 of 1997. He has since served 22 years from the date or arrest. 2. The Petitioner was in possession of firearm at the time of commission of the crime. His victim was a retired nurse from Switzerland who was residing alone at Watamu in Timbono area, Malindi. The victim was however, not injured in the robbery. 3. The Petitioner submitted that he has reformed and should be jailed for the 22 years he has served in jail. 4. On his part the Director of Public Prosecution Mr. Fedha submitted that the Petitioner be jailed for 25 years. 5. I have considered these submissions. The Petitioner appears to me to be remorseful. He also suffers from hypertension and ischaemis, conditions which make life more difficult in prison. The Petitioner has learnt his lesson. In my view the objectives of sentencing have been met, and the Petitioner has served time enough to atone for his crime. 6. In the upshot, the Court hereby sets aside the death sentence and substitutes the same with a sentence of 22 years, which, the Petitioner having served the same, the Petitioner is hereby set free and released from prison unless validly held. That is the Judgment of the Court. Dated, Signed and Delivered at Mombasa this 14th day of October, 2019. E. K. OGOLA JUDGE In the presence of: Mr. Fedha for DPP Petitioner in person Mr. Kaunda Court Assistant
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