[2019] KEHC 217 (KLR)
The court found that, following the Supreme Court's decision in Muruatetu, the mandatory death sentence for robbery with violence is unconstitutional and that resentencing is required. The court considered the period the petitioner had already served, his remorse, rehabilitation efforts, and the fact that he was a...
Source-derived case information.
- Citation
- [2019] KEHC 217 (KLR)
- Parties
- Appellant: Ahmed Shaban Odhiambo; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Criminal Miscellaneous Application 59 of 2019
- Procedural Posture
- Criminal Petition / Resentencing After Conviction and Appeal Dismissed
- Outcome
- petition for resentencing allowed; sentence substituted
- Judges
- TW Cherere
- Legal Topics
- Robbery With Violence, Mandatory Sentencing, Resentencing, Death Penalty, Custodial Sentence, Sentence Guidelines
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ahmed Shaban Odhiambo
Appellant
Republic
Respondent
Procedural Posture
Criminal Petition / Resentencing After Conviction and Appeal Dismissed
Legal Issues
- 1 Whether the mandatory death sentence for robbery with violence is unconstitutional following the Supreme Court decision in Muruatetu.
- 2 Whether the petitioner is entitled to resentencing in light of time served and mitigating factors.
Ratio Decidendi
The court found that, following the Supreme Court's decision in Muruatetu, the mandatory death sentence for robbery with violence is unconstitutional and that resentencing is required. The court considered the period the petitioner had already served, his remorse, rehabilitation efforts, and the fact that he was a first offender. The court also took into account the seriousness of the offence and the injuries suffered by the complainant. Applying the Sentencing Policy Guidelines and section 333(2) of the Criminal Procedure Code, the court determined that a sentence of 15 years' imprisonment from the date of conviction was appropriate, effectively recognizing the time already served and...
Court Disposition
petition for resentencing allowed; sentence substituted
Orders
- The petitioner is resentenced to 15 years' imprisonment from 15th August, 2008, the date of conviction.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KISUMU
(CORAM: CHERERE-J)
CRIMINAL PETITION NO. 59 OF 2019
BETWEEN
AHMED SHABAN ODHIAMBO............................................................PETITIONER
AND
REPUBLIC...............................................................................................RESPONDENT
JUDGEMENT
Introduction
1. On 15th August, 2008, the trial court in NYANDO CRIMINAL CASE NO.1538 OF 2006, convicted and sentenced the Petitioner to death for theoffence of robbery with violence contrary to section296(2)of the Penal Code. Petitioner lodged an appealKISUMU HIGH COURT CRIMINAL APPEALNO. 124 of 2008which was dismissed by a judgment dated03rdAugust, 2010. The Petitioner does not appear to have appealed to the Court of Appeal.
2. The Petitioner has petitioned this court for resentencing. Heexpressed remorse and stated that he was arrested on 17thAugust, 2006 and has been in custody since then.
3. Ms. Gathu, Senior Prosecution Counsel for the state submitted that the offence was heinous and complainants were injured during the robbery and recommended that Petitioner be resentenced to 20 years.
Analysis and Determination
4. At the time of the petitioner’s conviction, death was the only available sentence for robbery with violence.
5. The Supreme Court’s decision in Francis Karioki Muruatetu & Another v Republic & 5 others [2016] eKLRdeclaring the mandatory deathsentence unconstitutional has necessitated resentencing of all persons previously sentenced to the mandatory death sentence.
6. I have considered The Sentencing Policy Guidelines, 2016 and its application which is intended to promote transparency, consistency and fairness in sentencing (See Michael Kathewa Laichena & another v Republic [2018] eKLR).
7. Under the proviso to section 333(2) of the Criminal Procedure Code (Chapter 75 of the Laws of Kenya), the court is entitled to take into account the period the petitioner has spent in custody in determining the sentence.
8. The complainant was robbed and wounded. The Petitioner has trained and achieved a certificate of participation in income generating projects.
9. Petitioner was a first offender. The court record shows that the petitioner has served 11 years and 4 months since the date of conviction. He is re-sentenced to 15 years’ imprisonment from 15th August, 2008when he was convicted.
DELIVERED AND SIGNED IN KISUMU THIS 18thDAY OF December 2019
T. W. CHERERE
JUDGE
In the presence of-
Court Assistant - Amondi/Okodoi
Petitioner - Present in person
For the State - Ms. Gathu