Case ID:167776

Mohamed Mwalimu Mohamed v Director of Public Prosecutions [2020] eKLR

Case Metadata

Case Number:

Constitutional Petition 194 of 2019

Parties:

Mohamed Mwalimu Mohamed v Director of Public Prosecutions

Date Delivered:

10 Dec 2020

Case Class:

Civil

Court:

High Court at Mombasa

Case Action:

Judgment

Judge(s):

Eric Kennedy Okumu Ogola

Citation:

Mohamed Mwalimu Mohamed v Director of Public Prosecutions [2020] eKLR

Advocates:

Mr. Moke for the DPP

Court Division:

Constitutional and Human Rights

County:

Mombasa

Advocates:

Mr. Moke for the DPP

History Advocates:

One party or some parties represented

Case Outcome:

Accused set free

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

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 Violence

contrary to

Section 296(2)

of the

Penal Code

.

2. The particulars of that offence were that on

2

nd

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

6

th

September, 2011.

Thereafter, the Petitioner filed

Mombasa Court of Appeal Criminal Appeal No.250 of 2011

, which was equally dismissed vide

Judgment

delivered on

11

th

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 10

th

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

15

th

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.