[2019] KEHC 3721 (KLR)
The court found that, following the Supreme Court's decision in Muruatetu, the mandatory death sentence for robbery with violence is unconstitutional and that sentencing should be individualized. The petitioner had already served seventeen years, expressed remorse, and no life was lost during the commission of the...
Source-derived case information.
- Citation
- [2019] KEHC 3721 (KLR)
- Parties
- Appellant: Charles Okello Olala; Respondent: Director of Public Prosecution
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Petition 130 of 2018
- Procedural Posture
- Criminal Resentencing / Judgment
- Outcome
- death sentence set aside; custodial sentence imposed
- Judges
- DO Ogembo
- Legal Topics
- Robbery With Violence, Resentencing, Mandatory Sentences, Mitigation, Supreme Court Guidance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Charles Okello Olala
Appellant
Director of Public Prosecution
Respondent
Procedural Posture
Criminal Resentencing / Judgment
Legal Issues
- 1 Whether the mandatory death sentence for robbery with violence should be set aside in light of the Supreme Court decision in Muruatetu.
- 2 What is the appropriate sentence for the petitioner considering the circumstances of the offence and mitigation.
Ratio Decidendi
The court found that, following the Supreme Court's decision in Muruatetu, the mandatory death sentence for robbery with violence is unconstitutional and that sentencing should be individualized. The petitioner had already served seventeen years, expressed remorse, and no life was lost during the commission of the offence. The court accepted the petitioner's mitigation and considered the seriousness of the offence, the lack of injury to the complainant, and the time already served. Consequently, the court set aside the death sentence and imposed a custodial sentence of twenty-one years from the date of conviction.
Court Disposition
death sentence set aside; custodial sentence imposed
Orders
- The petitioner's death sentence is set aside and reversed.
- The petitioner is sentenced to twenty-one years imprisonment with effect from the date of conviction.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
PETITION NO. 130 OF 2018
CHARLES OKELLO OLALA.........................................................PETITIONER
VERSUS
DIRECTOR OF PUBLIC PROSECUTION.................................RESPONDENT
JUDGMENT
1. Charles Okello Olala (the appellant herein) was convicted and sentenced to death on a charge of robbery with violence contrary to Section 296 (2) Penal Code, the particulars being that on 7th day of October, 2002, at 12. 00 midnight at Malindi New Market parking yards in Malindi Location within Malindi District of the Coast Province, jointly with others not before court, being armed with dangerous weapons namely pistols and knives, robbed Shadrack Thoya Michael of his motor vehicle registration No. KAP 452Q, Toyota Corolla, white in colour, Ksh. 2,800/= all valued at Ksh. 402,800/= and at or immediately before or immediately after the time of such robbery, threatened to use actual violence to the said Shadrack Thoya Michael.
The appellant denied the charge. Prosecution called a total of six witnesses in support of its case.
2. The Petitioner has exhausted his appellate channels and is now in this court for the purposes of resentencing pursuant to the Supreme Court decision in Francis Kariokor Muruatetu & Another –Vs- Republic SCK Pet. No. 15 of 2015 (2017) eKLR.
3. The Petitioner states that he is remorseful and pleads for leniency. He has served seventeen (17) years in jail. He is now 59 years old, has a family of four (4) children.
4. Mr. Fedha for the prosecution submitted that the Petitioner committed the offence while armed with a pistol. The complainant was not injured. However, the crime is a common one and should be punished adequately with a sentence of twenty three (23) years.
5. I have considered the Petition and submissions. The Petitioner states that he has reformed and is willing to rejoin the society. This court has taken note that the offence of robbery with violence is a serious offence. It is however of some consolation that no life was lost in the process. This court has accepted the mitigation of the Petitioner and the fact that he has spent seventeen (17) years in jail. In the result the Petitioner’s death sentence is hereby set aside and reversed, and in the place, thereof a sentence is hereby pronounced upon the Petitioner of twenty one (21) years with effect from the date of conviction.
That is the Judgment of the court.
A right of appeal is granted to be exercised in 14 days.
Dated, Signed and Delivered at Mombasa this 8th Day of October, 2019.
E. K. O. OGOLA
JUDGE
In the presence of:
Mr. Fedha for State
Petitioner in person
Mr. Kaunda Court Assistant