Kenya: Robbery With Violence Still Attracts Death Penalty - High Court

A Kenyan man who attacked and robbed Italian tourists in 1995 will continue to serve a death sentence imposed on him 24 years ago.

Kennedy Kavai Abdalla, who has spent 26 years behind bars, had petitioned the High Court for resentencing, basing his arguments on a 2017 Supreme Court ruling on mandatory death sentences.

But Mombasa Resident Judge Eric Ogola ruled that Abdalla could not benefit from the apex court's judgment that declared mandatory death sentences unconstitutional.

The judge noted that the celebrated judgment was limited to people convicted of murder, according to a clarification the court issued last month.

"This direction automatically divests this court's jurisdiction to resentence the petitioner herein," Justice Ogolo said.

The clarification means people convicted of robbery with violence and other capital offenses still face mandatory death sentences.

Abdalla was sentenced to death in 1997 for the offense of robbery with violence.

But Justice Ogolo noted that the Supreme Court's clarification had removed his court's powers to interfere with jail terms.

The latest development is likely to affect thousands of convicts who had been banking on the 2017 judgment to seek early release from prison or get lesser sentences.

Hundreds of convicts have successfully petitioned for resentencing, with many securing their freedom or getting shorter sentences.

Abdalla was charged alongside seven others for attacking tourists and robbing them of their belongings.

He and his accomplices invaded a quiet supper party, bundled the diners into a room and robbed them of their valuables.

Delmonte Oscar, one of the tourists, testified that he could identify Abdalla. He said he positively identified him because of adequate electric light.

But Abdalla argued the tourists could not have identified him during the robbery as they could have been in a state of panic, considering that they were foreigners.

"In the circumstances of the robbery, the identification of the appellant could have been difficult," he said in his court documents.

"When a group of people invaded a quiet supper party and bundled the diners into a room, identification of a particular person could well be mistaken."

But he was convicted after evidence showed he had been found in possession of air tickets, a driving licence, an identification card, money and a big bag, property the court said could not have belonged to him but to the tourists.

The items were recovered from him five days after the robbery. He could not explain how he got them.

He had also been found with Italian currency and could not explain how he got the money. He also led police to where a G3 rifle used in the robbery was hidden.

He was sentenced to death by a magistrate court. He unsuccessfully challenged the conviction and death sentence at the High Court and the Court of Appeal.

In 2019, he filed the petition seeking resentencing based on the 2017 Supreme Court judgment.

Abdalla argued that his sentence was excessive and did not serve the interest of justice.

He also said he was a first-time offender, was young when the crime was committed and had benefited from the prison rehabilitation programme.

Prosecutors argued that the aggravating circumstances of the offence Abdalla committed outweighed any mitigation.

They said the offence committed was heinous and had left the victim with physical and psychological injuries.

Had his petition succeeded, Abdalla would have walked out of prison, because he has been behind bars for 26 years.

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