[2024] KEHC 10964 (KLR)
The High Court found that the applicant's life sentence, imposed after commutation from the death penalty for robbery with violence, is no longer tenable in light of the Court of Appeal's jurisprudence declaring mandatory life sentences unconstitutional. The court set aside the life sentence and substituted it with...
Source-derived case information.
- Citation
- [2024] KEHC 10964 (KLR)
- Parties
- Applicant: Norman Owino Agwata; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E030 of 2023
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Re Sentencing Application
- Outcome
- application allowed in part; life sentence set aside and substituted with 30 years imprisonment from date of arrest
- Judges
- WM Musyoka
- Legal Topics
- Mandatory Sentencing, Resentencing, Robbery With Violence, Constitutionality of Sentences
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Norman Owino Agwata
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Re Sentencing Application
Legal Issues
- 1 Whether the mandatory life sentence imposed for robbery with violence is unconstitutional in light of recent jurisprudence.
- 2 Whether the applicant is entitled to resentencing following the commutation of his death sentence to life imprisonment.
- 3 What is the appropriate substitute sentence for the applicant if the life sentence is set aside.
Ratio Decidendi
The High Court found that the applicant's life sentence, imposed after commutation from the death penalty for robbery with violence, is no longer tenable in light of the Court of Appeal's jurisprudence declaring mandatory life sentences unconstitutional. The court set aside the life sentence and substituted it with a determinate sentence of 30 years imprisonment, to be calculated from the date of arrest, in line with the guidance from Evans Nyamari Ayako v Republic. The court declined to impose a non-custodial sentence due to the aggravated nature of the offence, which involved the use of a firearm and actual violence against victims.
Court Disposition
application allowed in part; life sentence set aside and substituted with 30 years imprisonment from date of arrest
Orders
- The applicant's life sentence is set aside.
- The applicant is sentenced to 30 years imprisonment, to be calculated from the date of arrest.
Full Case Text
Judgment text and source record
21 paragraphs
Agwata v Republic (Miscellaneous Criminal Application E030 of 2023) [2024] KEHC 10964 (KLR) (20 September 2024) (Ruling)
Neutral citation: [2024] KEHC 10964 (KLR)
Republic of Kenya
In the High Court at Busia
Miscellaneous Criminal Application E030 of 2023
WM Musyoka, J
September 20, 2024
Between
Norman Owino Agwata
Applicant
and
Republic
Respondent
Ruling
1. The application, dated 30th November 2023, principally seeks re-sentencing. The applicant had been convicted, in Busia CMCCRC No. 1028 of 2010, of robbery with violence, contrary to section 295, as read with section 296(2), of the Penal Code, Cap 63, Laws of Kenya, which attracts, upon conviction, the death penalty, and the trial court had imposed that sentence.. He filed an appeal, in Busia HCCRA No. 2 of 2012, which was dismissed. He avers that his sentence was later commuted to life imprisonment.
2. The application, no doubt, rides on the decision in Francis Karioko Muruatetu & another vs. Republic [2017] eKLR (Maraga CJ&P, Mwilu DCJ&VP, Ojwang, Wanjala, Njoki & Lenaola, SCJJ), where the court appeared to lay down a general principle, that all mandatory sentences were unconstitutional, and to allow trial and appellate courts discretion to re-visit cases where mandatory sentences had been imposed, with a view to revising or reviewing them. The Supreme Court re-visited the issue, in Francis Karioko Muruatetu & another vs. Republic; Katiba Institute & 5 others (Amicus Curiae) [2021] eKLR (Koome CJ&P, Mwilu DCJ&VP, Ibrahim, Wanjala, Njoki, Lenaola & Ouko, SCJJ), and clarified that its decision, in Francis Karioko Muruatetu & another vs. Republic [2017] eKLR (Maraga CJ&P, Mwilu DCJ&VP, Ojwang, Wanjala, Njoki & Lenaola, SCJJ), was of application only in murder cases.
3. The current jurisprudence points to entertainment and tolerance of applications for review of sentence, where the trial court imposed a mandatory sentence, in circumstances where the law did not allow any discretion. The trend is, no doubt, in line with the very progressive provisions of the Constitution of Kenya of 2010. The offence, that the applicant was convicted in respect of, attracts a mandatory sentence. The principle laid out in Francis Karioko Muruatetu & another vs. Republic [2017] eKLR (Maraga CJ&P, Mwilu DCJ&VP, Ojwang, Wanjala, Njoki & Lenaola, SCJJ), declaring mandatory sentences unconstitutional, was boosted by that of the Court of Appeal, in Julius Kitsao Manyeso vs. Republic Malindi CACRA No. 12 of 2021 (Nyamweya, Lesiit & Odunga, JJA), with respect to the unconstitutionality of the life sentence. Recently it was held, in Evans Nyamari Ayako vs. Republic Kisumu CACRA No. 22 of 2018 (Okwengu, Omondi & J. Ngugi, JJA)(unreported), that life imprisonment translated to 30 years.
4. The application appears to be informed by Julius Kitsao Manyeso vs. Republic Malindi CACRA No. 12 of 2021 (Nyamweya, Lesiit & Odunga, JJA), now that his death sentence was commuted to life imprisonment. As sentences of life imprisonment have been pronounced unjust and unconstitutional, then it stands that the sentence imposed on the applicant herein is no longer tenable. I hereby set it aside. I shall proceed to consider the appropriate substitute sentence, guided by Evans Nyamari Ayako vs. Republic Kisumu CACRA No. 22 of 2018 (Okwengu, Omondi & J. Ngugi, JJA)(unreported).
5. The applicant was convicted of robbery with violence, which is a heinous crime. He was armed with a pistol and knives, and personal violence was actually used on some of his victims. The fact of being armed with a firearm aggravated that offence, for, in the event of a mishap, a life could easily have been lost.
6. Upon review of everything, I am not persuaded that the applicant is deserving of a non-custodial measure. However, he is entitled to benefit from Evans Nyamari Ayako vs. Republic Kisumu CACRA No. 22 of 2018 (Okwengu, Omondi & J. Ngugi, JJA)(unreported). I shall, hereby, impose upon him an imprisonment sentence of 30 years, to be calculated from the date of his arrest. Orders accordingly.
RULING DELIVERED, DATED AND SIGNED IN OPEN COURT AT BUSIA ON THIS 20THDAY OF SEPTEMBER 2024W MUSYOKAJUDGEMr. Arthur Etyang, Court Assistant.Mr. Norman Owino Agwata, the applicant in person.AdvocatesMr. Onanda, instructed by the Director of Public Prosecutions, for the respondent.