[2020] KEHC 7862 (KLR)
The court found that the mandatory death sentence for robbery with violence was unconstitutional following the Supreme Court's decision in Muruatetu. The court considered the petitioners' time served (13 years), their rehabilitation efforts, and the absence of physical harm to the complainant. Guided by comparable...
Source-derived case information.
- Citation
- [2020] KEHC 7862 (KLR)
- Parties
- Applicant: Calvins Peter Omondi; Applicant: Lameck Onyango; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Petition 65 of 2019
- Procedural Posture
- Constitutional Petition / Resentencing Judgment
- Outcome
- petition_allowed_in_part
- Judges
- TW Cherere
- Legal Topics
- Resentencing, Mandatory Sentences, Robbery With Violence, Constitutional Rights, Sentencing Guidelines
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Calvins Peter Omondi
Applicant
Lameck Onyango
Applicant
Republic
Respondent
Procedural Posture
Constitutional Petition / Resentencing Judgment
Legal Issues
- 1 Whether the mandatory death sentence for robbery with violence is unconstitutional in light of the Supreme Court decision in Muruatetu.
- 2 Whether the petitioners are entitled to resentencing based on the period already served and their rehabilitation efforts.
- 3 What is the appropriate sentence for the petitioners given the circumstances of the offence and their conduct in prison.
Ratio Decidendi
The court found that the mandatory death sentence for robbery with violence was unconstitutional following the Supreme Court's decision in Muruatetu. The court considered the petitioners' time served (13 years), their rehabilitation efforts, and the absence of physical harm to the complainant. Guided by comparable appellate decisions and the Sentencing Policy Guidelines, the court determined that a sentence of 20 years' imprisonment from the date of conviction was appropriate, taking into account the period already served and the potential for the petitioners' productive reintegration into society.
Court Disposition
petition_allowed_in_part
Orders
- Both petitioners are resentenced to serve 20 years' imprisonment each from 04th April, 2007, the date of conviction.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISUMU
(CORAM: CHERERE-J)
PETITION NO. 65 OF 2019
BETWEEN
CALVINS PETER OMONDI..........1ST PETITIONER
LAMECK ONYANGO....................2ND PETITIONER
AND
REPUBLIC............................................RESPONDENT
JUDGEMENT
Introduction
1. On 04th April, 2007, the trial court in KISUMU CRIMINAL CASE NO.240 OF 2006 convicted and sentenced the Petitioners to death for the offence of robbery with violence contrary to section 296(2)of the Penal Code. The death sentence was later commuted to life imprisonment.
2. Petitioners lodged appeals KISUMUHIGH COURT CRIMINAL APPEAL NOs. 62 and 63 of 2007 which were dismissed on 04th May, 2010 and the conviction and sentences were confirmed. Their appeal to the Court of Appeal vide KISUMU CRIMINAL APPEAL NOs. 167 & 170 OF 2010were similarly dismissed and the conviction and sentence confirmed.
3. Petitioners have petitioned the court for resentencing. Ms. Gathu, learned counsel for the state submitted that the petition was not opposed and proposed that the Petitioners who were armed with a firearm at the time of the robbery but did not injure the complainant during the robbery be resentenced to 20 years each.
Analysis and Determination
4. The Supreme Court’s decision in Francis KariokiMuruatetu& Another v Republic & 5 others [2016] eKLR declaring the mandatory death sentence unconstitutional has necessitated resentencing of all persons previously sentenced to the mandatory minimum and maximum sentences.
5. I have considered The Sentencing Policy Guidelines, 2016and its application which is intended to promote transparency, consistency and fairness in sentencing (See Michael Kathewa Laichena & another v Republic [2018] eKLR).
6. Under the proviso to section 333(2) of the Criminal Procedure Code (Chapter 75 of the Laws of Kenya), the court is entitled to take into account the period the petitioner has spent in custody in determining the sentence. The court record shows that the Petitioners have served 13 years since the date of conviction.
7. As a way of reformation, the 1st Petitioner has obtained a diploma in biblical studies among other certificates whereas the 2nd Petitioner has a certificate in Home Based Care. They have the potential for productive life outside prison.
8. I have considered judgments of Superior Courts that are intended to ensure consistency and fairness. In the case of Wycliffe Wangusi Mafura v Republic ELD CA Criminal Appeal No. 22 of 2016 [2018] eKLR, the Court of Appeal imposed a sentence of 20 years where the appellant was involved in robbing an Mpesa shop with the use of a firearm with which he threatened the attendant but was caught before he inflicted any violence on her.
9. Consequently, both Petitioners are hereby resentenced to serve 20 years from 04th April, 2007 when they were convicted and sentenced.
DELIVERED AND SIGNED IN KISUMU THIS 05th DAY OF March 2020
T. W. CHERERE
JUDGE
In the presence of-
Court Assistant - Amondi/Okodoi
Petitioner 1 - Present in person
Petitioner 2 - Present in person
For the State - Ms. Gathu