On the night of August 27, 2010, George Nderitu Ciuri of Kiduata village was going on with his businesses when he was attacked and robbed.
The hit to his head with a metal rod and a stone rendered him helpless as his assailant proceeded to rob him of his motorcycle, helmet, and a pair of protective gear.
The stolen items were all valued at Sh275,000.
The person who attacked Nderitu was later identified as Kelvin Njoroge Gathuri and was arrested.
On September 3, 2010, Njoroge was arraigned in Kiambu Chief Magistrate's Court and, charged with robbery with violence and handling stolen property contrary to the law.
After a full trial, the man was acquitted of the second charge being handling stolen property and convicted on the first.
In mitigation, Njoroge pleaded for leniency saying he would suffer in jail.
On May 31, 2011, the court imposed a death sentence on Njoroge for robbery with violence.
Following the aforesaid, the man unsuccessfully appealed against the conviction and sentence.
11 years later on June 14, 2022, unwilling to give up on his challenge, Njoroge filed an application before the High Court at Kiambu.
Through an affidavit, he said he had exhausted all appeals against the conviction.
He told the court that during the trial, he was denied a fair sentence, arguing that the mandatory death sentence is unconstitutional.
He cited a Supreme Court decision in the case of Francis Karioko Muruatetu versus the Republic of Kenya, which declared the death sentence unconstitutional.
In its ruling, Supreme Court judge Njoki Ndung'u held that the mandatory death penalty is “inconsistent” with the Constitution.
"The mandatory nature of the death sentences as provided under Section 204 of the Penal Code, is hereby, declared unconstitutional," she said.
The prosecution however opposed Njoroge's motion, stating that the offence of robbery with violence attracted a mandatory death sentence.
It further said the decision of the trial court considered the aggravating circumstances and that Njoroge had failed to mitigate for a lenient sentence during sentencing.
The prosecution added that the Muruatetu case cited only applies to murder cases, arguing that the subject sentence was legal, lawful, and not excessive.
It urged the court not to interfere with the sentence but to proceed and affirm the same, saying it would ensure that Njoroge is fully reformed.
After reviewing the case, Justice Peter Mulwa said he had considered the circumstances under which the offence was committed and the value of the stolen goods.
He noted that sentencing is a discretionary remedy for the judicial officers, but should be exercised judiciously and in accordance with the law.
Looking into the objectives of sentencing, the judge said he was not persuaded that the same is achieved when the court imposes mandatory sentences.
The objectives include retribution, deterrence, rehabilitation, restorative justice, community protection, and denunciation.
"I find the trial court did not exercise its discretion in sentencing as it applied the mandatory nature of the sentence as provided by law," the court said.
Delivering the judgment on Thursday, Judge Mulwa set aside the mandatory sentence imposed and directed that Njoroge serve a 25-year jail term instead.
"In the circumstances, I hereby set aside the (commuted) mandatory sentence of life imprisonment imposed and affirmed by the courts on appeal and substitute the same with a prison term of 25 years," the judgment reads.
Further, the Kiambu High Court backdated the term from August 28, 2010, on the day the man was arrested.
This is after considering the period Njoroge had already spent in custody during the trial.
Taking this into consideration, the man has 12 more years to go.
