Benard Kariuki M’Mburunga v Republic [2020] KEHC 4329 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MERU

PETITION NO. 191 OF 2018

BENARD KARIUKI M’MBURUNGA.... PETITIONER

VERSUS

REPUBLIC................................................RESPONDENT

R U L I N G

1. Benard Kariuki M’Mburunga (“the petitioner”), was charged with 3 others before the Chief Magistrate’s Court, Maua with robbery with violence contrary to section 296(2) of the Penal Code.

2. It was alleged that, on 14/8/2009 at Kangeta Market, Kangeta Location, in Igembe District (as it was then known), jointly with 3 others charged with him and others not before court, the petitioner robbed Andrew Muteaof his mobile phone make Nokia make 1200and cash Kshs.6,800/- all worth a total of Kshs.9,300/- and at or immediately after the time of such robbery used actual violence to the said Andrew Mutea.

3. They faced a second count wherein it was alleged that on the same night, place and time and while similarly armed and jointly with others not before court, they robbed Jacob Karwambaof Kshs.8,000/- and immediately thereafter wounded the said Jacob Karwamba.

4. After the trial, the petitioner and his co-accused were found guilty and sentenced to suffer death. His appeals to this Court and the Court of appeal were dismissed on 4/7/2013 and 22/11/2017, respectively.

5. He has now petitioned this Court to review his sentence on the basis of the Supreme Court decision in the case of Francis Muruatetu and Others vs Republic [2017] eKLR.

6. In that case, the Supreme Court of Kenya held that the mandatory nature of the death sentence under Section 204 of the Penal Code was unconstitutional as it denied the Court its discretion in sentencing. The Court proceeded to set out the criteria or the principles that should guide a Court in sentencing.

7. Some of the considerations are age of the offender, being a first offender, whether the offender pleaded guilty, the character and record of the offender, commission of the offence in response to gender-based violence, remorsefulness of the offender, the possibility of reform and social re-adaptation of the offender and any other factor that the Court considers relevant.

8. Though in that case the Supreme Court was dealing with the offence of murder, the view I take is that the same principle applies in other cases where the law provides for a mandatory death sentence including cases of robbery with violence. See the Court of Appeal decision in William Okungu Kittiny vs. Republic [2018] eKLR.

9. I have considered the foregoing and the circumstances under which the offence was committed. The petitioner has been in custody since August, 2009 (now about 11 years). I have considered his mitigation filed in Court on 25/3/2020. I have also considered the report of the Prisons authorities dated 20/5/2020 which is positive of the petitioner.

10. I have also considered the nature of the offence. That the value of what was stolen was totaled Kshs.17,300/- and that one of the complainant was not seriously injured.

11. In this regard, having considered the foregoing, the 11 year period of incarceration is not yet enough punishment. I am satisfied his petition should be allowed. I set aside the death sentence and re-sentence the 15 years imprisonment from the date of his first sentence.

DATEDand DELIVEREDat Meru this 3rd day of June, 2020.

A. MABEYA

JUDGE