[2018] KEHC 1655 (KLR)
The court, considering the Supreme Court's pronouncement that the death penalty is not mandatory for robbery with violence, exercised its discretion to impose a custodial sentence. The court took into account the seriousness of the offence, the fact that the complainant was injured, and the mitigation offered by the...
Source-derived case information.
- Citation
- [2018] KEHC 1655 (KLR)
- Parties
- Appellant: Calistus Musanyi Makotsi; Appellant: Alexander Andola Makotsi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 127 & 128 of 2014
- Procedural Posture
- Criminal Appeal / Resentencing After Appeal and Mitigation
- Outcome
- appellants resentenced to thirty years imprisonment each, sentence to run from date of conviction
- Judges
- DN Musyoka
- Legal Topics
- Robbery With Violence, Sentencing Discretion, Mitigation, Death Penalty, Penal Code Interpretation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Calistus Musanyi Makotsi
Appellant
Alexander Andola Makotsi
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Resentencing After Appeal and Mitigation
Legal Issues
- 1 Whether the appellants should be resentenced following the Supreme Court decision on the mandatory nature of the death penalty.
- 2 What is the appropriate sentence for robbery with violence under section 296(2) of the Penal Code after mitigation.
Ratio Decidendi
The court, considering the Supreme Court's pronouncement that the death penalty is not mandatory for robbery with violence, exercised its discretion to impose a custodial sentence. The court took into account the seriousness of the offence, the fact that the complainant was injured, and the mitigation offered by the appellants. Balancing these factors, the court found that a sentence of thirty years imprisonment was appropriate and proportionate, to run from the date of conviction by the lower court.
Court Disposition
appellants resentenced to thirty years imprisonment each, sentence to run from date of conviction
Orders
- The appellants, Calistus Musanyi Makotsi and Alexander Andola Makotsi, are sentenced to thirty (30) years imprisonment each, effective from 28th August 2014.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KAKAMEGA
CRIMINAL APPEALS NOS. 127 AND 128 OF 2014
(CONSOLIDATED)
BETWEEN
CALISTUS MUSANYI MAKOTSI...............1ST APPELLANT
ALEXANDER ANDOLA MAKOTSI...........2ND APPELLANT
VERSUS
REPUBLIC.........................................................RESPONDENT
RULING
1. The appeals herein were consolidated on 3rd March 2016. They had arisen from the conviction and sentence of the two appellants in Kakamega CMCRC No. 2430 of 2012. The appeals were canvassed before Sitati J, and a judgement was delivered 30th July 2018 dismissing them. However, the death sentence was set aside and the appellants required to mitigate before re-sentencing. The mitigation was done on 25th September 2018.
2. I have considered the record before me, together with the submissions made by the appellants as well as those made by the state. The appellants were convicted of robbery with violence contrary to section 296(2) of the Penal Code, Cap 63, Laws of Kenya. The penalty for the offence remains death, but the Supreme Court has held that the court may exercise some discretion and impose other sentences. The penalty for simple robbery as defined in section 296(1) remains a maximum of fourteen (14) years imprisonment. I note that the complainant was injured in the incident.
3. Taking all that into account, I do hereby sentence the appellants herein, Calistus Musanyi Makotsi and Alexander Andola Makotsi to thirty (30) years imprisonment, effective from the 28th August 2014 when the lower court convicted them.
DATED, SIGNED and DELIVERED at KAKAMEGA this 3RD DAY OF DECEMBER, 2018
W. MUSYOKA
JUDGE