[2019] KEHC 4678 (KLR)
The court held that, following the Supreme Court's decision in Francis Karioko Muratetu & Another v. Republic and the Court of Appeal's decision in William Okungu v. Republic, the mandatory death penalty for robbery with violence under section 296(2) of the Penal Code is unconstitutional. The sentence is now a...
Source-derived case information.
- Citation
- [2019] KEHC 4678 (KLR)
- Parties
- Applicant: Cyrus Nyamache Nyabuti; Applicant: Richard Achoki; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Constitutional Petition 10 of 2018
- Procedural Posture
- Constitutional Petition / Judgment
- Outcome
- petitioners resentenced to 15 years each from 14th October 2010
- Legal Topics
- Resentencing, Mandatory Death Penalty, Robbery With Violence, Supreme Court Precedent
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Cyrus Nyamache Nyabuti
Applicant
Richard Achoki
Applicant
Republic
Respondent
Procedural Posture
Constitutional Petition / Judgment
Legal Issues
- 1 Whether the mandatory death penalty for robbery with violence under section 296(2) of the Penal Code is unconstitutional in light of the Supreme Court decision in Francis Karioko Muratetu & Another v. Republic.
- 2 Whether the petitioners are entitled to resentencing following the declaration of unconstitutionality of the mandatory death penalty.
Ratio Decidendi
The court held that, following the Supreme Court's decision in Francis Karioko Muratetu & Another v. Republic and the Court of Appeal's decision in William Okungu v. Republic, the mandatory death penalty for robbery with violence under section 296(2) of the Penal Code is unconstitutional. The sentence is now a discretionary maximum, and the petitioners, having served about 8 years in custody, are entitled to resentencing. The court considered the circumstances of the case and the period already served, and resentenced each petitioner to 15 years' imprisonment from the date of first custody, 14th October 2010.
Court Disposition
petitioners resentenced to 15 years each from 14th October 2010
Orders
- Each petitioner is sentenced to 15 years' imprisonment from 14th October 2010.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT
AT KISII
CONSTITUTIONAL PETITION NO. 10 OF 2018
BETWEEN
CYRUS NYAMACHE NYABUTI.....1ST PETITIONER
RICHARD ACHOKI........................2ND PETITIONER
VERSUS
REPUBLIC............................................ RESPONDENT
JUDGMENT
1. The petitioners Cyrus Nyamache Nyabuti and Richard Achoki seeks resentencing. They were convicted of the offence of robbery with violence contrary to section 296 (2) of the Penal Code and were sentenced to death. They were sentenced in PMCC No.147 of 2018 at Nyamira. Their appeal in the High Court in HCCR NO.209 OF 2010 was dismissed.
2. The petitioners rely on the Supreme Court decision in Francis Karioko Muratetu & Another vs. Republic SCK Petition No. 15 of 2015 declaring the mandatory death penalty unconstitutional. This Court of Appeal’s decision in William Okungu vs. Republic Criminal Appeal No. 56 of 2013held as follows;
[9] From the foregoing, we hold that the findings and holding of the Supreme Court particularly in paragraph 69 applies mutatis mutandis to Section 296 (2) and 297 (2) of the Penal Code. Thus, the sentence of death under Section 296 (2) and 297 (2) of the Penal Code is a discretionary maximum punishment.
3. I have read the proceedings in the lower court and High Court, the circumstances of the case and also noted that the petitioner has been in custody since 14th October 2010, about 8 years. I sentence petitioners Cyrus Nyamache NyabutiandRichard Achokito a period of 15 years each one, from the 14th October 2010.
Dated signed and delivered at Kisii this 13th day of June 2019.
R.E.OUGO
JUDGE
In the presence of;
1st Petitioner Present in person
2nd Petitioner Present in person
Mr. Otieno Senior Prosecution Counsel Office of the DPP
Rael Court Clerk