[2020] KEHC 7014 (KLR)
The court found that the mandatory death sentence imposed on the petitioner for robbery with violence was unconstitutional in light of the Supreme Court's decision in Muruatetu. The court considered the circumstances of the offence, including the use of weapons and violence, the petitioner's mitigation, remorse, and...
Source-derived case information.
- Citation
- [2020] KEHC 7014 (KLR)
- Parties
- Petitioner: Allan Ochieng Okeyo; Respondent: Director of Public Prosecution
- Court
- High Court
- Court Station
- High Court at Migori
- Jurisdiction
- Kenya
- Case Number
- Petition 91 of 2018
- Procedural Posture
- Constitutional Petition / Judgment
- Outcome
- death sentence set aside; petitioner resentenced to 16 years imprisonment from date of arrest
- Judges
- DO Ogembo
- Legal Topics
- Mandatory Death Sentence, Resentencing, Right to Fair Trial, Robbery With Violence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Allan Ochieng Okeyo
Petitioner
Director of Public Prosecution
Respondent
Procedural Posture
Constitutional Petition / Judgment
Legal Issues
- 1 Whether the mandatory death sentence for robbery with violence is unconstitutional in light of the Supreme Court decision in Muruatetu.
- 2 Whether the petitioner is entitled to resentencing based on the unconstitutionality of the mandatory death sentence.
- 3 What is the appropriate sentence for the petitioner considering the circumstances of the offence and mitigation.
Ratio Decidendi
The court found that the mandatory death sentence imposed on the petitioner for robbery with violence was unconstitutional in light of the Supreme Court's decision in Muruatetu. The court considered the circumstances of the offence, including the use of weapons and violence, the petitioner's mitigation, remorse, and progress in custody. Having spent 13 years in custody, the court set aside the death sentence and imposed a determinate sentence of 16 years imprisonment from the date of arrest, balancing the gravity of the offence with the petitioner's demonstrated reform and constitutional rights.
Court Disposition
death sentence set aside; petitioner resentenced to 16 years imprisonment from date of arrest
Orders
- The death sentence imposed on the petitioner is set aside.
- The petitioner is sentenced to 16 years imprisonment from the date of arrest.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
PETITION NO. 91 OF 2018
ALLAN OCHIENG OKEYO.............................PETITIONER
AND
DIRECTOR OF PUBLIC PROSECUTION....ESPONDENT
JUDGMENT
1. The Petitioner was convicted for the offence of Robbery with Violence contrary to Section 295 as read with 296(2) of the Penal Code and sentenced to death in Mombasa Cr. Case No. 2883 of 2006. He appealed in HCCRA No. 143 of 2007 and Criminal Appeal. No. 218 of 2010. Both appeals were dismissed and sentence upheld.
2. The Petitioner has now petitioned this court for review of sentence in view of the Supreme Court declaration in Francis Kariokor Muruatetu & Another vs. Republic SCK Pet. No. 15 of 2015 (2017) eKLRin which the apex court found and held that the mandatory nature of the death sentence is unconstitutional.
Brief Circumstance of the offence
3. The particulars are that on 8th August 2006 along Mvita Road in Mombasa District Coast Province jointly with others and while armed with dangerous weapons namely toy pistols and knives robbed PHILIP MWENDWA MUTISYA of Kshs. 76,000 and immediately before or after the time of such robbery used personal violence on the victim.
4. The Petitioner submitted that the death sentence which was commuted to life imprisonment is unconstitutional. He has now exhausted his right of appeal and approaches this Court to declare the death sentence unconstitutional and contrary to Article 50(1) and Article 25(a) of the constitution, and to impose an appropriate sentence upon him.
5. He further submitted that the court did not consider his mitigation as he is a first offender and has never been accused of breaking the law and at the same time he is very remorseful as he has already paid his debt to the society and learnt his lesson. The Petitioner apologized for the offence he committed and prayed to be released so that he can apply the skills learnt in custody to the community outside prison.
6. I have considered the Petition as well submissions of the parties. On the issue of re-sentencing the Petitioner submitted that he has reformed and this is supported by the Prisoner’s Progress Report. This Court notes that the Petitioner and his accomplices actually were armed with a knife at the time of the offence. Sentencing must consider how the crime was committed, and also the rights of the victims. The Petitioner has spent 13 years in custody since the time of his arrest.
7. In consideration of these premises, I hereby set aside the death sentence mete on the Petitioner and instead thereof I herewith impose a 16 years jail term upon the Petitioner from the time of the arrest.
That is the Judgment of the court.
Right of appeal in 14 days.
Dated, Signed and Delivered at Mombasa this 9th day April, of 2020.
E. K. O. OGOLA
JUDGE
In the presence of:
Petitioner in Person via video link
Ms. Mwangeka for DPP
Mr. Kaunda Court Assistant