[2020] KEHC 3893 (KLR)
The court found that, following the Supreme Court's decision in Francis Muruatetu, the mandatory death sentence for robbery with violence is unconstitutional and courts must exercise discretion in sentencing. The applicant demonstrated genuine remorse, rehabilitation, and had served a significant period in custody....
Source-derived case information.
- Citation
- [2020] KEHC 3893 (KLR)
- Parties
- Applicant: Bernard Ouma Abai Jaugenya; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Criminal Petition 5 of 2020
- Procedural Posture
- Criminal Petition / Application for Resentencing Following Conviction and Dismissal of Appeals
- Outcome
- petition for resentencing allowed; death sentence vacated and substituted with ten years imprisonment from date of arrest; post-release reporting ordered
- Judges
- RE Aburili
- Legal Topics
- Resentencing, Robbery With Violence, Mandatory Sentences, Mitigation, Rehabilitation, Francis Muruatetu Guidelines
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Bernard Ouma Abai Jaugenya
Applicant
Republic
Respondent
Procedural Posture
Criminal Petition / Application for Resentencing Following Conviction and Dismissal of Appeals
Legal Issues
- 1 Whether the mandatory death sentence for robbery with violence should be revised in light of the Francis Muruatetu decision.
- 2 Whether the applicant's demonstrated remorse and rehabilitation justify a reduced sentence.
- 3 What is the appropriate sentence considering the circumstances of the offence and the applicant's mitigation.
Ratio Decidendi
The court found that, following the Supreme Court's decision in Francis Muruatetu, the mandatory death sentence for robbery with violence is unconstitutional and courts must exercise discretion in sentencing. The applicant demonstrated genuine remorse, rehabilitation, and had served a significant period in custody. The offence, while serious, did not result in grievous injuries and the weapons used were not lethal. Considering the applicant's mitigation, certificates of reform, and the less severe harm to the complainant, the court determined that a custodial sentence of ten years, calculated from the date of arrest, was appropriate. The court also imposed a post-release reporting...
Court Disposition
petition for resentencing allowed; death sentence vacated and substituted with ten years imprisonment from date of arrest; post-release reporting ordered
Orders
- The mandatory death sentence as commuted to life imprisonment is vacated and substituted with a prison term of ten years from the date of arrest (19/12/2012).
- Upon release, the applicant shall report to the area chief once every month on Fridays for twelve months from the date of release.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT SIAYA
CRIMINAL PETITION NO. 5 OF 2020
(CORAM: R. E. ABURILI - J.)
BERNARD OUMA ABAI JAUGENYA......APPLICANT
VERSUS
REPUBLIC................................................RESPONDENT
(Being an Application for Revision of Sentence and Conviction in Kisumu HCRA 134/2012 and
Originally from SPM’s court, Siaya vide Criminal Case No. 525 of 2011 before Hon. R.B. Ngetich)
JUDGMENT
1. The Petitioner BERNARD OUMA ABAI JAUGENYA was jointly with two others convicted of the offence of robbery with violence and sentenced to suffer death by Hon. R.B. Ngetich SPM (as she then was on 19/12/2012 vide Siaya PM Cr. Case No. 525/2011.
2. He appealed to the High Court at Kisumu vide HCRA 134/2012 which appeal was dismissed and he appealed further to the Court of Appeal vide CA 10/2014 which appeal was dismissed on 27/5/2016.
3. The Petitioner seeks for resentencing vide this Petition as he was handed maximum mandatory death penalty which was commuted to life imprisonment. This is pursuant to the Francis Muruatetu decision SC Pet. No. 15 & 16 of 2014.
4. The Petitioner submits that he regrets the offence, prays for leniency and that he was reformed. Certificates shown to the court show that he was trained in theology at Discovery Bible School and has a certificate in Health Education and counselling having trained in Mind Education Training. He has served about 10 years in prison from the time of his arrest.
5. The State acknowledges that the Petitioner has reformed and that he can be given an opportunity to serve custodial sentence but that the offence is heinous requiring deterrent sentence.
6. I have considered the Petition, submissions, testimonials and response by the State. I have also considered circumstances under which the offence was committed, the value of the property stolen and the nature of injuries sustained by the complainant. I have given equal consideration to the mitigation by the Petitioner.
7. The offence of robbery with violence is prompted by greed, reaping where one has not sown and in the process threatening life and limb. It is a heinous crime.
8. However, the Petitioner has shown remorse and reform. He is rehabilitated through life’s skills leant in the prison as shown by certificates filed in court.
9. The complainant did not sustain serious injuries. They were classified as harm and the weapons used in the robbery were not as lethal. They used clubs and rungus to assault and threaten the complainant.
10. I am in the circumstances satisfied that the Petitioner who readily accepts his mistakes and admits the offence and promises not to reoffend, deserves a chance back into the society.
11. Accordingly, I allow the Petition for resentencing and vacate the mandatory death sentence as commuted to life imprisonment and substitute it with a prison term of ten years to be calculated from the date of his arrest on19. 12. 2012. The Petitioner shall also be reporting, upon his release, to the area chief once every month on Fridays for the next twelve months from date of his release from prison.
12. Orders accordingly.
Dated, signed and delivered at Siaya, this 29th day of July, 2020
R.E. ABURILI
JUDGE
In the presence of:
Bernard Ouma Abai Jaugenya, Petitioner in person in prison via Microsoft teams
Mr. Okachi, SPPC for State
Court Assistants: Brenda Achieng and Modestar Mutiemani