[2018] KEHC 977 (KLR)
The court held that, following the Supreme Court's decision in Muruatetu and the Court of Appeal's application of that decision to robbery with violence cases, the mandatory death penalty is unconstitutional. The petitioner, having been sentenced under a now-invalidated mandatory regime, is entitled to have his...
Source-derived case information.
- Citation
- [2018] KEHC 977 (KLR)
- Parties
- Applicant: Bond James Onyango; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Petition 75 of 2018
- Procedural Posture
- Constitutional Petition / Judgment
- Outcome
- petition allowed
- Judges
- TW Cherere
- Legal Topics
- Resentencing, Mandatory Death Penalty, Robbery With Violence, Constitutional Rights, Sentence Review
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Bond James Onyango
Applicant
Republic
Respondent
Procedural Posture
Constitutional Petition / Judgment
Legal Issues
- 1 Whether the petitioner is entitled to resentencing following the Supreme Court decision declaring the mandatory death penalty unconstitutional.
- 2 Whether the case should be remitted to the trial court for mitigation and resentencing.
Ratio Decidendi
The court held that, following the Supreme Court's decision in Muruatetu and the Court of Appeal's application of that decision to robbery with violence cases, the mandatory death penalty is unconstitutional. The petitioner, having been sentenced under a now-invalidated mandatory regime, is entitled to have his sentence reviewed. The appropriate course is to remit the matter to the trial court for a rehearing on sentence, allowing for mitigation and the imposition of a lawful, individualized sentence. The court's decision is guided by binding precedent and the need to ensure constitutional compliance in sentencing.
Court Disposition
petition allowed
Orders
- The petitioner’s case is remitted to Maseno Magistrate’s Court for mitigation and re-sentence.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISUMU
PETITION NO.75 OF 2018
CORAM: CHERERE- J.
BETWEEN
BOND JAMES ONYANGO................................................PETITIONER
AND
REPUBLIC........................................................................RESPONDENT
JUDGMENT
1. The petitioner has petitioned this court for resentencing. The Petitioner has placed reliance on the Supreme Court decision inFrancis KariokoMuruateru& Another v RepublicSCKPet. No. 15 OF 2015 [2017] eKLR declaring the mandatory death sentence for the offence of murder unconstitutional.
2. In the case of William OkunguKittiny v RepublicKSM CA Criminal Appeal No. 56 of 2013 [2018] eKLR, the Court of Appeal applied the Muruatetudecisionmutatis mutandis to the provisions of section 296(2) of the Penal Code(Chapter 63 of the Laws of Kenya) which imposes the mandatory death penalty for the offence of robbery with violence and held that the Supreme Court decision opened the door for review of death sentences even in finalized cases.
3. The petitioner, BOND JAMES ONYANGO was charged, convicted and sentenced to death for the offence of robbery with violence contrary to section 296(2) of the Penal Code (Chapter 63 of the Laws of Kenya) at a trial before the Maseno Principal Magistrate’s Court in Criminal Case No. 765 of 2003.
4. The Petitioner appealed the decision of the trial court in Kisumu High Court, Criminal Appeal No. 143 of 2005. The appeal was dismissed on 14th June, 2007.
5. The Petitioner’s second Appeal, Kisumu Criminal Appeal No. 312 of 2007 was dismissed on 5th December, 2008.
6. The petitioner has already had the benefit of his death sentence commuted to life imprisonment by His Excellency the President under the Power of Mercy conferred under Article 133 of the Constitution.
7. I have considered the decision in William OkunguKittiny v Republic [2018]eKLRwhere the Court of Appeal remitted the case to the trial court for sentence rehearing. Since that decision is binding on this court, I find that the appropriate order in this matter is to remit the case to the trial court to re-consider the facts as they existed at the time of sentencing and impose an appropriate sentence in light of the fact that the mandatory death penalty has been declared unconstitutional.
8. Consequently, the Petition succeeds.
1) The Petitioner’s case is remitted to Maseno Magistrate’s Court for mitigation and re-sentence.
2) Orders accordingly
DATED AND DATED IN KISUMU THIS1stDAY OFNovember2018
T. W. CHERERE
JUDGE
Read in open court in the presence of-
Court Assistant- Felix
For the Petitioner-
For the State-