The High Court has quashed a man's death sentence for robbery with violence and replaced it with a 10-year jail term.
In his ruling, Justice Nixon Sifuna said David Maina Mburu, who was convicted of robbing Annah Njeri Mugane of Sh5,000 while armed with a knife and slapping her on the cheek in Kandara, Murang'a County, but appealed, should serve 10 years in prison with effect from February 20, 2018.
“Despite having upheld the conviction of the accused, I find that the death sentence the learned trial magistrate imposed, is harsh, excessive and disproportionate in the circumstances of this case. Even when the aggravating factors are considered side by side with the mitigating factors. The latter include the property stolen in the robbery, which is Ksh 5000 cash; also, the fact that the injury inflicted on the complainant is a minor one inflicted by a slap on the cheek, which has in the P3 Form been described as “harm”, namely, minor tenderness that healed on analgesics,” Mr Justice Sifuna said.
The judgment in Murang'a stated that the death penalty prescribed for the offence of robbery with violence is a maximum sentence and not a mandatory or minimum sentence.
“Therefore, a court in this country has discretion to impose any lesser sentence up to a maximum of a death sentence. Death sentence should be imposed on the most heinous and aggravating circumstances like where the incident resulted in the death of the victim or involved other heinous acts such as rape or sodomy,” the judge added.
Justice Sifuna held that the charge of robbery with violence against Mburu was proved beyond reasonable doubt and that he was duly convicted “and the appeal on conviction fails accordingly.”
Kandara Senior Resident Magistrate Manuela Kinyanjui had on February 6, 2018, sentenced Mburu to suffer death, describing him as a threat to the family and entire community.
Aggrieved by the decision, Mburu appealed the conviction and sentence and asked the court to determine whether the charge of robbery with violence was proved to the required standard, whether he was properly convicted and whether the death sentence imposed on the accused was justified or harsh and excessive.
Mr Justice Sifuna noted that Mburu was positively identified by the complainant and that “I do not see any element of mistake or delusion on her part.”
“This is clear from the evidence of the prosecution, and the same has not been sufficiently discounted.”
Mr Justice Sifuna robbery with violence is committed when the offender is armed with any dangerous weapon and offensive weapon or instrument, or the offender is in company with one or more person or persons or at or immediately before or immediately after the time of the robbery the offender wounds, beats, strikes or uses other personal violence to any person.
He said one element is sufficient to find an offence of robbery with violence and that the prosecution offered evidence that Mburu was armed with a dangerous weapon, “to wit, a knife and that immediately before so doing, he assaulted her.”
