Amani Baro Ngundo v Director of Public Prosecution [2021] KEHC 9543 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MOMBASA

PETITION NO. 36 OF 2019

AMANI BARO NGUNDO..........................................................PETITIONER

VERSUS

DIRECTOR OF PUBLIC PROSECUTION .........................RESPONDENT

JUDGMENT ON RESENTENCING

1.  The Petitioner Amani Baro Ngundo had filed an appeal challenging his conviction and sentence by the Senior Resident Magistrate at the Mombasa Law courts.  The Petitioner was first arraigned in court on 14/6/2010 facing a charge of robbery with violence contrary to Section 296 (2) of the Penal code.  The particulars of the charge were given as follows:

“On the 9th day of June, 2010 at about 10. 45 p.m. at Fahari Estate in Bamburi Location, Kisauni District of Coast Province while armed with dangerous and offensive weapon namely a machete, robbed Venant M. M’nwadu Mkindi of one Panasonic 14 inch TV, a Sony Hi FI system 3D changer and three pairs of leather shoes all valued at Kshs. 33,000/= and at or immediately before or immediately after the time of such robbery used actual violence to the said Venant M’nwadu Mkindi.”

2. The Petitioner filed appeal being Mombasa Criminal Appeal No. 86 of 2012 – Amani Baro Ngundo v. Republic.  The said appeal was dismissed by Justices M. Odero and S. Mukunya on 31/3/2014.  However, the Supreme Court later established that the Hon. Justice Mukunya (the late) being an ELC Judge ought not to have heard the appeal.  The appeal was therefore declared null and void.

3.  Subsequently, the Petitioner herein sought to file another appeal.  However, he has not succeeded in doing that because the proceedings of trial court have not been found.  In the course of waiting however, the Petitioner, by his submissions on 25/11/2020 decided to abandon his yet to be filed appeal and informed this court that he was instead praying for resentencing. He then went ahead to submit on resentencing.

4.  Accordingly therefore, the Petitioner is in this court for resentencing pursuant to the Supreme Court decision in Francis Karioko Muruatetu & Another vs. Republic [2017] eKLR wherein the apex court found that the mandatory nature of the death sentence was unconstitutional.

5.  The Petitioner submitted that he regretted the offence he committed and that he is a reformed person   He is now born again and shuns evil.  He prays for a second chance to rejoin the society of good people.  He has been in jail for 13 years and has learnt tailoring.  He also educates other in mates.  At 44 years of age, the Petitioner prays to be allowed to go home and help his people.

6.  On her part Ms. Wanjohi the learned prosecutor submitted that while this court can resentence the Petitioner, he should be jailed for 30 years.

7.  I have considered the petition and submissions.  The Petitioner committed robbery with violence and stole property worth Kshs. 33,000/=.  In the process he harmed the complainant in the forehead and forearm.  He used dangerous weapons to carry out his heinous mission.  While the offence committed by the Petitioner requires adequate punishment, the 30 years imprisonment submitted for by the prosecution is on the higher side.

8. In my view the Petitioner would be adequately punished by a jail term of seventeen (17) years.  I therefore hereby set aside the death sentence imposed on the Petitioner by the trial court, and in place thereof I jail the Petitioner for a term of seventeen (17) years from the date of conviction.

Right of appeal in 14 days.

Dated, Signed and Delivered at Mombasa this 28th dayof January, 2021.

E. K.  OGOLA

JUDGE

Judgment delivered via MS Teams in the presence of:

Petitioner in person via video link

Ms. Wanjohi for DPP

Ms. Peris Court Assistant