Simba Ndoro Kidunga & Kacha Chaka Tsuma v Director of Public Prosecutions [2020] KEHC 7528 (KLR)

THE REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

CONSTITUTIONAL AND HUMAN RIGHTS DIVISION

PETITION NO. 230 OF 2018

1. SIMBA NDORO KIDUNGA

2. KACHA CHAKA TSUMA...................................... PETITIONERS

VERSUS

THE DIRECTOR OF PUBLIC PROSECUTIONS....RESPONDENT

JUDGMENT

1. The Petitioners were tried and convicted for the offence of robbery with violence contrary to Section 296(2) of the Penal Code in Criminal Case Kwale Principal Magistrate No. 1292 of 2008.  They were sentenced to death, and have lost all chances in appeal both at the High Court and in the Court of Appeal.

2. The Petitioners are now in this court for resentencing pursuant to the decision of the Supreme Court in Francis Karioko Muruatetu & Another vs. Republic [2017] eKLRwhich found the mandatory nature of the death sentence to be unconstitutional.

3. The Petitioners had been charged with robbing the complainant f 2 heads of cows and Kshs. 26,000/=.  The complainant was the 2nd Petitioner’s father.

4.   Both Petitioners submitted that they regret what they did and prayed that they be jailed for the term they have served in prison which is 11 years.

5.   On his part Mr. Fedha, learned counsel for the State submitted that the Petitioners be jailed for 16 years to serve as example to would be robbers.

6.   I have considered the submissions.  The Petitioners appear remorseful and may have reformed.  However, the offence of robbery with violence is a serious affront to the societal morals and must be punished adequately.

7.   In the upshot, I hereby set aside the death sentence meted out on the Petitioners and in place thereof I jail the Petitioners to a term of 13 years from the date of arrest.

8.  Right of appeal in 14 days.

Dated, Signed and Delivered at Mombasa this 11th day of March, 2020.

E. K. O. OGOLA

JUDGE

In the presence of:

Mr. Fedha for DPP

Petitioners in person

Mr. Kaunda Court Assistant