[2019] KEHC 7931 (KLR)
The court held that following the Supreme Court's decision in Muruatetu, the mandatory death sentence for robbery with violence is unconstitutional and sentencing is now discretionary. The court considered the aggravating factor that the complainant was severely injured during the robbery, as well as the mitigating...
Source-derived case information.
- Citation
- [2019] KEHC 7931 (KLR)
- Parties
- Petitioner: Clifford Otiato; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Petition 7 of 2019
- Procedural Posture
- Petition / Resentencing After Conviction and Appeals Dismissed
- Outcome
- petition allowed in part; petitioner resentenced to 20 years imprisonment from date of conviction
- Judges
- TW Cherere
- Legal Topics
- Resentencing, Mandatory Death Sentence, Robbery With Violence, Mitigating Factors, Sentencing Guidelines
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Clifford Otiato
Petitioner
Republic
Respondent
Procedural Posture
Petition / Resentencing After Conviction and Appeals Dismissed
Legal Issues
- 1 Whether the petitioner is entitled to resentencing following the Supreme Court decision declaring the mandatory death sentence unconstitutional.
- 2 What is the appropriate sentence for the petitioner considering the circumstances of the offence and time already served.
Ratio Decidendi
The court held that following the Supreme Court's decision in Muruatetu, the mandatory death sentence for robbery with violence is unconstitutional and sentencing is now discretionary. The court considered the aggravating factor that the complainant was severely injured during the robbery, as well as the mitigating factor that the petitioner had already served about 11 years and could be considered a first offender. The court also took into account the need for consistency and fairness in sentencing, referencing comparable appellate decisions. Balancing these factors, the court resentenced the petitioner to 20 years imprisonment from the date of conviction, with eligibility for remission...
Court Disposition
petition allowed in part; petitioner resentenced to 20 years imprisonment from date of conviction
Orders
- The petitioner is resentenced to 20 years imprisonment from the date of conviction.
- The petitioner is entitled to benefit from remission of sentence if he meets the conditions.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISUMU
(CORAM: CHERERE- J.)
PETITION NO.07 OF 2019
BETWEEN
CLIFFORD OTIATO.............PETITIONER
AND
REPUBLIC............................RESPONDENT
JUDGMENT
Introduction
1. CLIFFORD OTIATO, (hereinafter referred to as the petitioner) was on 20th June, 2008 convicted and sentenced to death for robbery with violence contrary to section 296(2)of the Penal Code in Maseno Criminal Case No. 961 of 2008. Petitioner lodged an appeal Kisumu High Court Criminal Appeal No. 142 of 2008 which was dismissed on 11th June, 2010 whereupon the conviction and sentence were upheld. The petitioner subsequently appealed to the Court of Appeal in Kisumu Criminal Appeal No. 181 of 2010and the appeal was similarly dismissed and his conviction and sentence upheld in a judgment dated 26th April, 2012.
2. The petitioner has petitioned this court for resentencing. He urged the court to consider that he had reformed.
3. Mr. Muia, learned counsel for the state urged court to consider that the robbery was committed by Petitioner and others who were armed with pangas and that complainant was robbed and injured. The state proposed that the petitioner be resentenced to 10 more years over and above the years already served.
Analysis and Determination
4. The Supreme Court 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 death sentence. In the case of William Okungu Kittiny v Republic KSM CA Criminal Appeal No. 56 of 2013 [2018] eKLR, the Court of Appeal applied the Muruatetu Case (Supra) mutatis 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 death was a discretionary maximum sentence.
5. I have considered the Sentencing Policy Guidelines, 2016and their application which is intended to promote transparency, consistency and fairness in sentencing (See Michael Kathewa Laichena & Another v Republic [2018] eKLR).
6. The maximum sentence for simple robbery is 14 years imprisonment. The mitigating circumstances in this case are that the petitioner could be considered a first offender. The facts from the record shows that the offence took place at night and the robbers who were armed with pangas severely injured the complainant.
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. Petitioner has served about 11 years since conviction.
9. 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. In Robert AchapaOkello vs Republic [2018] eKLR, this court resentenced the Petitioner who had been in custody for 15 years to period served on account of the fact that no violence was meted on the complainants unlike in this case where complainant was injured.
10. After considering all the mitigating and aggravating factors, the fact that the complainant was severely injured and the fact that the petitioner has already served close to 11 years imprisonment, I re-sentence him to 20 yearsimprisonment from date of conviction.
11. Further to the foregoing, the Petitioner’s sentence having been commuted to a definite imprisonment term is also entitled to benefit from remission of sentence if he meets the conditions. It is so ordered.
DATED AND SIGNED IN KISUMU THIS 4th DAY OF April 2019
T. W. CHERERE
JUDGE
Read in open court in the presence of-
Court Assistant- Felix
Petitioner- Present in person
For the State- Mr. Muia