[2022] KEHC 14073 (KLR)

Awuor v Republic (Petition E003 of 2022) [2022] KEHC 14073 (KLR) (20 September 2022) (Judgment)

Neutral citation: [2022] KEHC 14073 (KLR)

Republic of Kenya

In the High Court at Kisumu

Petition E003 of 2022

RE Aburili, J

September 20, 2022

Between

Joseph Onyango Awuor

Applicant

and

Republic

Respondent

Judgment

1. The petitioner is Joseph Onyango Awuor. This judgment determines thepetitioner/convict’s humble Petition filed in court on 24th February 2022 seeking for resentencing in line with the Supreme Court’s decision in the case ofFrancis Karioko Muruatetu &another v Republic(2017) eKLR.

2. The petitioner in his supporting affidavit asserts that he was tried, convicted and sentenced to hang (death) for the offence of Robbery with violence vide Nyando Senior Resident Magistrate’s Court Criminal Case No 736 of 2005 on 28th July 2006 as shown by the warrant of commitment to prison annexed to his petition. The sentence of death is the mandatory sentence provided for under section 296(2) of thePenal Codefor the offence of Robbery with violence, upon conviction.

3. The petitioner was jointly charged, tried and convicted with another, Cliff Ochieng Oduor who according to the Petitioner, was resentenced vide Petition No 5 of 2018 to a term sentence and given the benefit of the provisions ofsection 333(2) of the Criminal Procedure Code, taking into account the period spent in custody during the trial.

4. The petitioner’s death sentence was later commuted to life imprisonment in 2009. All his appeals to High Court and Court of Appeal were dismissed. While in prison, he submits that he has reformed and been fully rehabilitated. That his is remorseful, he is now aged and trained in various life’s skills and is a religious leader the Catholic Church and ready to serve as a Catechist. He has also trained in Home Based Care for his survivors. He regrets committing the offence which he attributes to bad influence from bad company.

5. He submitted that the prisons authorities are ready to connect him with the Catholic Church outside prison to serve as a Catechist. He is also a Grade 1 driver. His co-convict Cliff Ochieng petitioned for resentencing and was resentenced to serve 25 years in prison which term he has completed and was released.

6. Prior to being convicted, the Petitioner served 15 months in remand custody. He filed another Petition No E028 of 2022 seeking that the court takes into account the provisions of section 333(2) of the Criminal Procedure Code which provide for consideration of the period served in remand in sentencing by the trial court, which period should this court resentence him, should be taken into account.

7. Having considered all the above submissions in support of the Petition, and taking into account the principles espoused in the Francis Muruatetu case (2017), and the age of the petitioner who has been in prison for over 18 years, I am satisfied that the petitioner deserves a chance to return back into the society to live a more meaningful life as he is now reformed and rehabilitated.

8. I allow the Petition for resentencing filed on 14th February 2022 and set aside and vacate the death sentence imposed on the petitioner as commuted to life imprisonment. In its place, I hereby resentence the petitioner Joseph Onyango Awuor to the prison term already served, on both counts, taking into account the period already spent in remand custody prior to his conviction and sentencing.

9. Therefore, unless otherwise lawfully held, Joseph Onyango Awuor shall be set at liberty forthwith.

10. This Ruling and order shall be typed forthwith and a signal send to Prisons to facilitate the process of releasing thepetitioner.

11. I so order.

12. File closed.

DATED, SIGNED AND DELIVERED AT KISUMU THIS 20TH DAY OF SEPTEMBER 2022R. E. ABURILIJUDGE