Case ID:168088

Mohamed Hamisi v Director of Public Prosecution [2020] eKLR

Case Metadata

Case Number:

Constitutional Petition 171 of 2019

Parties:

Mohamed Hamisi v Director of Public Prosecution

Date Delivered:

15 Dec 2020

Case Class:

Criminal

Court:

High Court at Mombasa

Case Action:

Judgment

Judge(s):

Eric Kennedy Okumu Ogola

Citation:

Mohamed Hamisi v Director of Public Prosecution [2020] eKLR

Advocates:

Mr. Fedha for the State

Court Division:

Criminal

County:

Mombasa

Advocates:

Mr. Fedha for the State

Case Outcome:

Petition allowed

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

HIGH COURT APPEAL NO.119 OF 2007 AT MOMBASA

IN RESPECT OF CRIMINAL CASE NO.3481 OF 2006 AT MOMBASA

CONSTITUTIONAL PETITION NO.171 OF 2019

MOHAMED HAMISI

.....................................................................................PETITIONER

VERSUS

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

JUDGMENT ON RESENTENCING

Background

1. The Petitioner herein was charged with the offence of

Robbery with Violence

contrary to

Section 296(2)

of the

Penal Code

. The particulars being that on

22

nd

September, 2006

at around

8,45pm

at Mtongwe Village in Mombasa District within Coast Province, jointly with others not before court, robbed

Patrick Kinoti

of his

mobile phone

Nokia 2650

valued at

Kshs.5,000/=

. The Complainant was able to identify him as they both threatened him using the knives.

2. The matter proceeded and the accused was convicted and sentenced to death in

Criminal Case No.3481 of 2006

.

Circumstances of the case

3. The Petitioner was in the company of another who was armed with

dangerous weapons namely knife; the Petitioner used fear and intimidation on the complainant by threatening him using the knife; the Petitioner robbed the Complainant a Mobile Phone

Nokia 2650

valued at

Kshs.5,000/=.

Re-sentence

7. In the case of

Thomas Mwambu Wenyi –vs- Repblic(2017)eKLR

, the court cited the decision of the Supreme Court of India in

Alister Anthony Pereira – vs- State of Mahareshtra at paragraph 70-71

, where the Court held the following on sentencing:-

“Sentencing is an important task in the matter of crime. One of the prime objectives of the criminal law is imposition of appropriate, adequate, just and proportionate sentence commensurate with the nature and gravity of crime and the manner in which the crime is done. There is no straight jacket formula for sentencing an accused person upon proof of crime. The Courts have evolved certain principles; twin objective of sentencing policy is deterrence and correction. What sentence would meet the ends of justice depends on the facts and circumstances of each case and the courts must keep in mind the gravity of the crime, motive for the crime, nature of the offence and all other attendant circumstances. The principle of proportionality in sentencing a crime doer is well entrenched in criminal jurisprudence. As a matter of law, proportion between crime and punishment bears most relevant influence in determination of sentencing the crime doer. The court has to take into consideration all aspects including social interest and consciousness of the society for awards of appropriate sentence”

.

8. The offence that the Petitioner herein is charged with was a grave one and any opposition could have led to the loss of life of either of the parties. In the case of

Doughlas Muthaura Ntoribi –vs- Republic, Meru High Court Criminal Appeal No.4 of 2015

, the robbers while armed with a panga stole

Kshs.500/=

from the victim and occasioned him minor injuries Chetembwe J. substituted the death sentence with a prison term of

15 years

. In this matter, the Petitioner has spent

14 years

in prison. In my view, that is adequate punishment for his crime. I therefore herewith set aside the death sentence imposed on the Petitioner. In place thereof, I jail the Petitioner for the time he has served, with the result that he is herewith set free and released from prison unless otherwise legally held.

DATED, SIGNED and DELIVERED at MOMBASA on this 15

th

day of December

,

2020.

E. K. OGOLA

JUDGE

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

Mr. Fedha for State

Petitioner in person

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.