[2011] KEHC 1364 (KLR)
The court found that the trial court erred by failing to allow the appellants to mitigate before sentencing and by holding that the death penalty was the only available sentence for robbery with violence. Upon considering the appellants' mitigation—including their youth, remorse, lack of previous records, and the...
Source-derived case information.
- Citation
- [2011] KEHC 1364 (KLR)
- Parties
- Appellant: Boaz Onyango; Appellant: Fredrick Osodo Omondi; Appellant: Martin Ochieng Owori; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 53, 54 & 55 of 2010
- Procedural Posture
- Criminal Appeal / Resentencing After Mitigation
- Outcome
- sentence reduced
- Judges
- RN Nambuye, A Ali-Aroni
- Legal Topics
- Robbery With Violence, Sentencing Principles, Mitigation, Death Penalty, First Offender Status
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Boaz Onyango
Appellant
Fredrick Osodo Omondi
Appellant
Martin Ochieng Owori
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Resentencing After Mitigation
Legal Issues
- 1 Whether the death sentence imposed by the trial court was mandatory and appropriate in the circumstances.
- 2 Whether the appellants were afforded an opportunity to mitigate before sentencing.
- 3 Whether the sentence should be reduced in light of the appellants' mitigation and circumstances.
Ratio Decidendi
The court found that the trial court erred by failing to allow the appellants to mitigate before sentencing and by holding that the death penalty was the only available sentence for robbery with violence. Upon considering the appellants' mitigation—including their youth, remorse, lack of previous records, and the relatively low value of the stolen goods—the court determined that the death sentence was harsh and excessive. The court exercised its discretion to reduce the sentence to five years' imprisonment, holding that the interests of justice and the prospects of rehabilitation outweighed the need for the maximum penalty in this case.
Court Disposition
sentence reduced
Orders
- The death sentence imposed on the appellants is set aside.
- Each appellant shall serve five years' imprisonment from 7th August, 2010.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KISUMU
CRIMINAL APPEAL NO. 53, 54 & 55 OF 2010
BOAZ ONYANGO........................................................................1ST APPELLANT
FREDRICK OSODO OMONDI......................................................2ND APPELLANT
MARTIN OCHIENG OWORI.........................................................3RD APPELLANT
-VERSUS-
REPUBLIC......................................................................................RESPONDENT
RULING
The 3 appellants were charged with the offence of Robbery contrary to Section 296(2) of the Penal Code. The trial court convicted the appellants of the offence and sentenced them to death.
We confirmed the conviction in our judgment of the 4th of August, 2011. However we faulted the trial court for not giving the appellants an opportunity to arrest the death sentence and for holding that the only sentence available for the offence is the death penalty.
In mitigation to arrest the death sentence the appellants stated as follows:-
1ST APPELLANT: Boaz Onyango. He is remorseful, young with a bright future which should not be shattered by the death sentence. If given an opportunity he will further his education. He is 20 years old.
2ND APPELLANT: Fredrick Osodo Omondi.He is a first offender, remorseful, young man who needs rehabilitation. He is 27 years.
3RD APPELLANT:Martin Ochieng Owuor.Despite denying the offence in many words, he sought for leniency, he is married.
On its side the prosecution informed the court that there are no previous records and the appellants may be treated as first offenders.
We have considered the mitigation by the appellants. We have also taken into account the goods subject of the Robbery were valued at Kshs 2,000/=, and that the complainant received a knife stab during the robbery incident. Although the offence committed is serious and on the rise weighed against all odds, we find that the death sentence is harsh and excessive in the circumstance of the case.
The appellants are all remorseful, young and have promised to reform. We are of the considered view that they deserve a second chance in life and we shall in this regard reduce the death sentence to that of 5 years imprisonment to run from the 7th of August, 2010 being the date they were sentenced by the trial court.
DELIVERED THIS 4TH DAY OF OCTOBER, 2011.
ROSELYN N. NAMBUYE
JUDGE
ALI-ARONI
JUDGE
In the presence of:
………………………………………………………………………… for State
…….…………………………………… present for Appellants.