Mohamed Mwalimu Mohamed v Director of Public Prosecutions [2020] KEHC 10376 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MOMBASA

CONSTITUTIONAL AND HUMAN RIGHTS DIVISION

COURT OF APPEAL NO.250 OF 2016, HIGH COURT APPEAL NO.184 OF 2006

IN RESPECT OF CRIMINAL CASE NO.3267 OF 2005 IN CM’s COURT AT MOMBASA

CONSTITUTIONAL PETITION NO.194 OF 2019

IN THE MATTER OF: ARTICLE 22(1) OF THE CONSTITUTION OF KENYA 2010

AND

IN THE MATTER OF: ARTICLE  50(1),(2)(P), 21(1)(3)(C), 23(1)(3) OF  THE CONSTITUTION OF KENYA, 2010

AND

IN THE MATTER OF: CONTRAVENTION OF FUNDAMENTAL RIGHTS AND FREEDOMS OF THE INDIVIDUAL UNDER ARTICLES 25(A)(B)(C), 26(1), 27(1)(2)(4), 28, 29(A)(C)(D)(F), 35(1), 48  OF THE CONSTITUTION 2010

AND

IN THE MATTER OF: ARTICLE  258(1) AND 259(1)(3)(A) OF THE GENERAL PROVISION OF THE NEW CONSTITUTION

AND

IN THE MATTER OF:  SECTION 329 AND 216 OF THE CRIMINAL PROCEDURE CODE

BETWEEN

MOHAMED MWALIMU MOHAMED............................................PETITIONER

VERSUS

THE DIRECTOR OF PUBLIC PROSECUTIONS........................RESPONDENT

JUDGMENT

Background

1. The Petitioner herein was arraigned before the Mombasa Chief Magistrate’s Court on a charge of Robbery with Violencecontrary to Section 296(2)of thePenal Code.

2. The particulars of that offence were that on 2nd August, 2005 at around 7. 00pm at Mwandoni Village in Mombasa District within Coast Province, jointly with others not before court, while armed with dangerous weapons, namely knives, robbed Khadija Ahmed of a mobile phone make Samsung valued at Kshs.7,000/= and cash Kshs.1,500/= and at or immediately before or immediately after the time of such robbery used actual violence on the said Khadija Ahmed.

3. The Petitioner entered a plea of ‘not guilty’ and his trial began.  After his trial, the Learned Trial Magistrate found the Petitioner guilty of the said offence, convicted him and sentenced him to death.

4. Being aggrieved by the said conviction and sentence, the Petitioner filed Mombasa High Court Criminal Appeal No.184 of 2006, which the Court dismissed vide its Judgment delivered on 6th September, 2011.  Thereafter, the Petitioner filed Mombasa Court of Appeal Criminal Appeal No.250 of 2011, which was equally dismissed vide Judgment delivered on 11th March, 2016.

5. The Petitioner is seeking a re-sentence in the instant Petition pursuant to the Supreme Court’s decision in the case of Francis Karioko Muruatetu & Another – vs- Republic[2017] eKLR, in which the apex court decided that the mandatory nature of the death sentence was unconstitution.

Circumstances of the case

6. The victim was attacked by a group of three men.

7. The victim positively identified the Petitioner as one of her attackers.

8. The Petitioner robbed the victim of a mobile phone make Samsung valued at Kshs.7,000/= and cash Kshs.1,500/=.

9. The prosecution conceded  that this Court can interfere with the death sentence meted on the Petitioner pursuant to the aforesaid Muruatetu case, and submitted that a sentence of 15 years is adequate.  However, the Petitioner has indeed served 16 years in jail.

10. I therefore jail the Petitioner for time equivalent to that he has already served with the result that he is hereby released and set free from jail unless otherwise lawfully held.

DATED, SIGNED and DELIVERED at MOMBASA on this 10th  day of December, 2020.

E. K. OGOLA

JUDGE

Ruling delivered in chambers via MS Teams in the presence of:

Mr. Moke for DPP

Petitioner in person

Court Assistant – Peris

Note:

In view of the declaration of measures restricting court operations due to

the COVID-19 pandemic and in light of the directions issued by His Lordship the Chief Justice on 15th March 2020, this Judgment has been delivered to the parties online with their consent.  They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules which requires that all judgments and rulings be pronounced in open Court.