Case ID:168434
Parties: None
Date Delivered: None
Case Type: None
Court: None
Judges: None
Citation: None
Samsom Alex Mchesi v Director of Public Prosecutions [2020] eKLR
Case Metadata
Case Number:
Petition 126 of 2019
Parties:
Samsom Alex Mchesi v Director of Public Prosecutions
Date Delivered:
15 Dec 2020
Case Class:
Criminal
Court:
High Court at Mombasa
Case Action:
Judgment
Judge(s):
Eric Kennedy Okumu Ogola
Citation:
Samsom Alex Mchesi v Director of Public Prosecutions [2020] eKLR
Advocates:
Mr. Fedha for State
Court Division:
Criminal
County:
Mombasa
Advocates:
Mr. Fedha for State
History Advocates:
One party or some parties represented
Case Outcome:
Petitioner acquitted
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
CONSTITUTION AND HUMAN RIGHTS DIVISION
CRIMINAL APP. NO.117 OF 2007
AT MOMBASA
FROM ORIGINAL FILE NO.2990/200 CM’s COURT AT MOMBASA
PETITION NO. 126 OF 2019
IN THE MATTER OF: THE CONSTITUTION OF KENYA 2010 (SUPERVISORY AND PROTECTION OF FUNDAMENTAL RIGHTS AND FREEDOM OF INDIVIDUAL) HIGH COURT PROCEDURE PRACTICE AND PROCEDURE RULE 2013
AND
IN THE MATTER OF: ARTICLE 22(1) OF THE CONSTITUTION
AND
IN THE MATTER OF: ARTICLE 23(1) OF THE CONSTITUTION
AND
IN THE MATTER OF: CONTRAVENTION OF FUNDAMENTAL RIGHTS AND FREEDOMS OF INDIVIDUAL UNDER ATICLES 23(1)(2)(3), 32(1)(2)(3)(c), 26(1)(2), 48, 50(2)(b)(c) & (p) OF THE CONSTITUTION AND SECTION 295 AND 296(2) OF THE PENAL CODE
AND
IN THE MATTER OF: ARTICLES 19(3)(A), 20(1), 25(c) 50(q), 159(1)(2) (a)(b)(d) and (e), 258(1), 259(1)(3) OF THE CONSTITUTION
BETWEEN
SAMSOM ALEX MCHESI.....................................PETITIONER
VERSUS
DIRECTOR OF PUBLIC PROSECUTIONS.... RESPONDENT
JUDGMENT ON RESENTENCING
1. The Petitioner
Samson Alex Mchesi
was charged and convicted for the offence of
Robbery with Violence
contrary to
Section 296(2)
of the
Penal Code
and sentenced to death.
2. The particulars of the charge were that on the
29
th
day of July 2005
, at
Bokole Villag,e Changamwe
in
Mombasa District
within
Coast Province
jointly with others not before court, while armed with offensive weapons namely pangas, robbed
Mercy Chao
of cash
Kshs.20/=
and at or immediately before or immediately after the time of such robbery used actual violence to the said
Mercy Chao
.
3. The Petitioner appealed both the conviction and the sentence to the High Court. The Appeal was dismissed.
4. The Petitioner is now before this Court for resentencing pursuant to the Supreme Court decision on
Francis Karioko Muruatetu & Another –vs- Republic (2017)eKLR
, in which the apex court found that the mandatory nature of the death sentence is unconstitutional.
5.
M/S Wanjohi
, Learned Counsel for the State conceded that pursuant to the aforesaid
Muruatetu Case
, this Court has the jurisdiction to resentence the Petitioner. Counsel submitted however, that there are aggravating circumstances in this matter which the court should consider in resentencing. These are that the Petitioner together with five others assaulted the victim at
4.45am
using a panga. They cut their victim on the ear and right leg. The victim was left psychologically traumatized. Although the Petitioner has learnt a course at the prison, and although he is a first offender, Counsel submitted that the offence committed is grave and a deterrence sentence of
twenty-five(25) years
in prison should be given.
6. On his part, the Petitioner submitted that he was remorseful, and that he has reformed and he is sickly and that he should be jailed for a maximum of
twenty (20) years
from the date of arrest.
7. I have considered the Petition. I have also considered both aggravating and mitigating factors. The Petitioner has served
fourteen (14) years
in jail since arrest. Record from prison shows that the Petitioner is sickly; is hypertensive, and suffers from Peptic Ulcers and other ailments. The prison progress report also shows that the Petitioner is of good conduct and relates well with other inmates. He is currently the leader of inmates with disabilities. He is also a born again Christian and has obtained several Certificates in Bible Study. The Petitioner attached eight copies of various Certificate of Merit. In my view, the Petitioner has shown a desire to change. Although the offence the Petitioner committed is a very serious one, the Petitioner has demonstrated that he has reformed.
8. Further, the Petitioner is sickly, and suffers various forms of disabilities. In my view, and especially with a view to decongest our prisons at this time of Covid-19 pandemic, the time the Petitioner has served in prison of
fourteen years
is adequate punishment in the circumstances.
9. I therefore, now lift the death sentence imposed on the Petitioner, and instead thereof I jail the Petitioner to a term equivalent with that he has already served.
10. The consequence of the above is that the Petitioner is forthwith released from prison unless validly held for other reasons.
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.
E. K. OGOLA
JUDGE