[2023] KEHC 25961 (KLR)

Chol v Republic (Criminal Miscellaneous Application E065 of 2023) [2023] KEHC 25961 (KLR) (29 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25961 (KLR)

Republic of Kenya

In the High Court at Lodwar

Criminal Miscellaneous Application E065 of 2023

RN Nyakundi, J

November 29, 2023

Between

Panchol Chol

Applicant

and

Republic

Respondent

(Being an appeal from the original conviction and sentence in the Principal Magistrate Court at Kakuma Criminal Case No. E004 of 2022 by Hon. A. Mayamba (PM) dated 23rd day of May 2022)

Ruling

Coram: Before Justice R. NyakundiMr. Edward Kakoi for the State 1. The applicant was charged in the lower court with others with the offence of robbery with violence contrary to section 295 as read with 296(2) of the Penal code. 2. The particulars of the offence were that on the 4th day of January, 2022 at around 1400 hours at Kakuma refugee Camp in Turkana West Sub County within Turkana County, jointly with others not before court, while armed with rungus, pangas and knife robbed Brian Osewe Ondogo of one mobile phone make KG-TEL valued at Kshs. 1,500 and one motorcycle registration number KMEE 841D valued at Kshs. 150,000/= at the time of such robbery used actual violence to the said Brian Osewe Ondogo.

3. The applicant was convicted of the said charge and a sentence of 12 years was imposed. The applicant filed an application dated 3rd April seeking a re-sentencing. I take note that the applicant is not disputing conviction but seeks a lenient sentence.

Analysis and determination 4. I have considered the application and all the information available. In such circumstances the court will ordinarily check the legality or propriety or appropriateness of the sentence. The relevant considerations in the proceeding inter alia, are the penalty law, mitigating or aggravating factors, and the objects of punishments.

5. The offence of robbery with violence is contained in Sections 295 and 296(2) of the Penal Code as follows: 295. Any person who steals anything, and, at or immediately before or immediately after the time of stealing it, uses or threatens to use actual violence to any person or property in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained, is guilty of the felony termed robbery.

296(2).If the offender is armed with any dangerous or offensive weapon or instrument, or is in company with one or more other person or persons, or if, at or immediately after the time of robbery, he wounds, beats, strikes or uses any other personal violence to any person, he shall be sentenced to death.”

6. Further, In Jeremiah Oloo Odira v Republic [2018] eKLR the Learned Judge encapsulated the aforementioned sections and elaborated on the offence of robbery with violence as follows:“Robbery is committed when a person steals anything capable of being stolen and immediately before or after the theft the person uses actual violence or threatens to use actual violence on the holder of the thing or the property so as to either obtain or retain the stolen thing or so as to prevent or overcome any resistance thereto. Two things must therefore be proved for the offence of robbery to be established: Theft and the use of or threat to use actual violence.On the other hand, the offence of robbery with violence is committed when robbery is proved and further if any one of the following three ingredients are established: -i.The offender is armed with any dangerous or offensive weapon or instrument, orii.The offender is in the company of one or more other person or persons, oriii.The offender at or immediately before or immediately after the time of the robbery, wounds, beats, strikes or uses any other personal violence to any person” See Olouch v Republic (1985) KLR)

On sentencing 7. The applicant argues that he should be granted a lenient sentence on grounds that he is a first offender and remorseful; that he is a refugee unable to locate his family.

8. In the “Muruatetu Case”, the Supreme Court outlined the following guidelines as being applicable when the Court was giving consideration to re-sentencing;(a)age of the offender;(b)being a first offender;(c)whether the offender pleaded guilty;(d)character and record of the offender;(e)commission of the offence in response to gender-based violence;(f)remorsefulness of the offender;(g)the possibility of reform and social re-adaption of the offender;(h)any other factor that the Court considers relevant.”

9. I have perused through the trial court’s judgment and I have taken note that the court while sentencing, addressed its mind as follows:“I have considered the age assessment reports herein which indicates that both accused are over the age of 18. I also note that they are relatively young. Taking note that case such as this are prevalent, this court need to deter as in some instances victims have suffered fatal injuries. I do invoke the holding in the Muruatetu decision and deviate from the mandatory sentence which is death owing to circumstances of the case, while considering the age of the accused persons. I do sentence them to serve 12 years in prison”

10. It is my considered view that the objectives and guidelines of sentencing were considered by the trial court. The offence of robbery with violence attracts a death sentence and as such the sentence of 12 years is reasonable. Only for the committal warrants to prison to be amended for the sentence commencement date be on the 6th January, 2022. Therefore applying my mind to the application as prescribed by the applicant in terms of article 50 (2) (p) (q) (1) and 165 3(a) of theconstitution as scrutinized within the back ground of the record there is no violation of the constitution on the sentence handed down to the applicant in the instant case. In my considered view not the legality, justness, correctness, reasonableness or appropriateness can challenge this penalty of custodial sentence. This second bite of the cherry by the applicant fails absolutely.

11. This Application is dismissed for want of merit and this file is hereby closed.Orders accordingly.

DATED AND SIGNED AT LODWAR THIS 29TH DAY OF NOVEMBER, 2023In the presence of;Mr. Kakoi for the stateApplicant in person.........................R. NYAKUNDIJUDGE