Damwena Hassan Machea v Director of Public Prosecution

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MOMBASA CONSTITUTIONAL AND HUMAN RIGHTS DIVISION PETITION NO. 182 OF 2018 IN THE CONSTITUTION OF KENYA 2010 (SUPERVISORY JURISDICTION AND PROTECTION OF FUNDAMENTAL RIGHTS AND FREEDOMS OF AN INDIVIDUAL) HIGH COURT PRACTICE AND PROCEDURE RULES 2013 IN THE MATTER OF: ARTICLE 22(i) OF THE CONSTITUTION AND IN THE MATTER OF: ARTICLES 19, 20, 21, 22, 23, 24, 25, 27, 48, 50,258 & 259 OF THE CONSTITUTION OF KENYA AND BETWEEN DAMWENA HASSAN MACHEA............................................PETITIONER AND DIRECTOR OF PUBLIC PROSECUTION..........................RESPONDENT JUDGMENT 1. The Petitioner DAMWENA HASSAN MACHEA was charged with the offence of robbery with violence contrary to Section 296 (2) of the Penal Code in Criminal Case No. 4369 of 1999 and sentenced to death. His appeal to the Court of Appeal was dismissed on 27 th September, 2001. 2. The petition is now before the Court for resentencing pursuant to the Supreme Court decision in Francis Karioko Muruatetu & Another vs. Republic [2017] eKLR which decided that a mandatory death sentence is unconstitutional. 3. The Petitioner has been in custody for 21 years. He submitted that the said period of 21 years is enough punishment for the crime he was convicted for, and that he has totally changed and fully rehabilitated. 4. Mr. Fedha learned counsel for the prosecution submitted that the Petitioner be sentenced to 21 years since he has served 21 years now. 5. I have considered the submissions. The principle in sentencing is that the Court should take into account the mitigation offered by the Petitioner, the facts of retribution, rehabilitation and reformation. The Court should ask itself whether the Petitioner is remorseful, and has sufficiently been rehabilitated and reformed to reasonably be expected to assume life in a free and orderly society. The Court must also look at the nature of the offence the Petitioner was convicted for, and it has effected the victims. The Determination 6. I have considered the petition. The Petitioner regrets what he did. There is a good report of him from the prison. I sentence him to the 21 years already served, noting that nobody was injured in the robbery. I herewith release the Petitioner unless validly held.

page 1 of 2