Case ID:168089

Samuel Kariuki Kinyua v Director of Public Prosecutions [2020] eKLR

Case Metadata

Case Number:

Constitutional Petition 90 of 2019

Parties:

Samuel Kariuki Kinyua v Director of Public Prosecutions

Date Delivered:

15 Dec 2020

Case Class:

Civil

Court:

High Court at Mombasa

Case Action:

Judgment

Judge(s):

Eric Kennedy Okumu Ogola

Citation:

Samuel Kariuki Kinyua v Director of Public Prosecutions [2020] eKLR

Advocates:

Mr. Fedha for State

Court Division:

Civil

County:

Mombasa

Advocates:

Mr. Fedha for State

History Advocates:

One party or some parties represented

Case Outcome:

Petitioner released

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 PETITION NO. 90 OF 2019

SAMUEL KARIUKI KINYUA................................................PETITIONER

VERSUS

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

JUDGMENT ON RESENTENCING

1. The Petitioner herein,

Samuel Kariuki Kinyua

was charged and convicted, with the offence of

Robbery with Violence contrary to

Section 296(2) of the Penal Code

.

2. The particulars of the offence were that on the

19

th

and 2

0

th

day of

October,

2003,

at

Naira House

in

Casuarina

area in

Malindi Location

within

Malindi Distict

of the

Coast Province

, jointly while armed with offensive weapons namely knives, robbed

Kazungu Randu Rashid

of one Motor Cycle make Suzuki registration

No.KAC 771M

, one Alarm Control and one knife all valued at

Kshs.200,000/=

and at or immediately before or immediately after threatened to use violence against Kazungu Randu Rashid.

3. The Appellant also faced an alternative charge of

handling stolen property

contrary to Section 322

of the Penal Code

. The particulars being that on the

19

th

and 20

th

day of

October, 2003

at

BP Petrol Station

Area

in

Malindi Location

within

Malindi District

of the

Coast province

, otherwise than in the course of stealing, jointly dishonestly handled one Suzuki Motor Cycle registration

No.KAC 771M

, knowing or having knowledge that it was unlawfully obtained or stolen property.

4. The Petitioner was found guilty of the main charge of Robbery with Violence, convicted and sentenced to death. Being dissatisfied with the conviction, he filed an Appeal to the High Court which was dismissed on

17

th

March 2010

.

5. The Petitioner is now in this Court for purpose of resentencing pursuant to the Supreme Court decision in

Francis Karioko Muruatetu & Another vs. Republic[2017]eKLR

,

in which the apex court found that the mandatory nature of the death sentence was unconstitutional and struck down

Section 204

of the

Penal Code

to the extent that it prescribed mandatory death sentence upon conviction for murder.

6. It is for this reason that I take the jurisdiction to re-consider the sentence on the Petitioner herein following the

Muruatetu Case

.

7.

Mr. Fedha

, Learned Counsel for the DPP submitted that one of the Petitioner’s co-accused

Michael Wafula Wambani

passed away at Malindi Prison while the 3

rd

Co-accused

Josphat Musyimi Makau

filed a

Petition No.25 of 2019

in

Malindi Court

. His Petition was allowed and he was sentenced to serve

16 years

in prison. He was released on

14

th

April, 2020

. Counsel submitted that the Petitioner be released for the time served based on

Petition No.25 of 2019 (Malindi).

8. In parity with the sentence given in

Petition No.25 of 2019 (Malindi)

in which the Petitioner’s co-accused

Josphat Musyimi Makau

was sentenced to serve

16 years

in jail, the Petitioner herein is hereby sentenced to serve

16 years

in jail for his crime. And since he has already served the said

16 years

, the Petitioner is hereby set free and released from prison unless otherwise lawfully held.

That is the Judgment of the Court.

Dated, Signed and Delivered at Mombasa 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

Ms. Peris Court Assistant

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.