[2020] KEHC 3809 (KLR)
The court found that the mandatory nature of the life sentence imposed on the applicant for robbery with violence was unconstitutional following the Supreme Court's decision in Muruatetu, which restored judicial discretion in sentencing. The court acknowledged the seriousness of the offence and the suffering caused...
Source-derived case information.
- Citation
- [2020] KEHC 3809 (KLR)
- Parties
- Applicant: David Kipkoech Kosgei; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Petition 15 of 2019
- Procedural Posture
- Resentencing Application / Ruling on Resentencing After Conviction and Exhaustion of Appeals
- Outcome
- sentence reduced
- Judges
- RB Ngetich
- Legal Topics
- Resentencing, Mandatory Sentences, Robbery With Violence, Mitigating Factors, Rehabilitation, Constitutional Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
David Kipkoech Kosgei
Applicant
Republic
Respondent
Procedural Posture
Resentencing Application / Ruling on Resentencing After Conviction and Exhaustion of Appeals
Legal Issues
- 1 Whether the mandatory life sentence for robbery with violence is unconstitutional following the Supreme Court decision in Muruatetu.
- 2 Whether the applicant's sentence should be reduced in light of mitigating factors and time already served.
Ratio Decidendi
The court found that the mandatory nature of the life sentence imposed on the applicant for robbery with violence was unconstitutional following the Supreme Court's decision in Muruatetu, which restored judicial discretion in sentencing. The court acknowledged the seriousness of the offence and the suffering caused to the victims but also considered the applicant's demonstrated remorse, rehabilitation, acquisition of vocational skills, and the significant period already served in prison. Balancing these factors, the court exercised its discretion to reduce the applicant's sentence to a determinate term of 30 years' imprisonment, to run from the date of the original sentence.
Court Disposition
sentence reduced
Orders
- Sentence is hereby reduced to 30 years’ imprisonment.
- The sentence to run from the date the applicant was sentenced in the lower court.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
PET. NO. 15 OF 2019
DAVID KIPKOECH KOSGEI......................................................................APPLICANT
VERSUS
REPUBLIC..................................................................................................RESPONDENT
RULING
1. This is a ruling on application for resentencing. The applicant had been charged and convicted of the offence of Robbery with violence contrary to Section 296(2) of the Penal Codeyear 2000. He was sentenced to death. He has exhausted his right of appeal by filing appeal in both the High Court and Court of Appeal. His sentence was later commuted to life imprisonment and has now served 19 years 6 months in prison.
2. The applicant relied on the case of Francis Karioko Muruatetu Vs Republic [2017] eKLR to argue that the mandatory sentence imposed by the trial Court and upheld by the High Court and Court of Appeal is excessive and harsh and sought an appropriate sentence.
3. The applicant stated that while in prison he has trained as a carpenter and obtained certificates Grade 1, 2 and 3. He supplied Court copy of the certificates. He stated that he has reformed and learnt skills to enable him be self-reliant. He said that he has a wife and 2 children. He stated that he regrets having committed the offence and prayed that his life sentence be reduced.
4. In response Ms. Rita Rotich for the state opposed the application and urged the Court to consider aggravating circumstances. She submitted that the accused was not only charged with murder but he was also charged with rape in that upon robbing his victims, he raped them; she submitted that 2 victims were raped in this case and the offence is rampant in the society; that the petitioner was a social misfit and life sentence is deterring. She urged the Court to dismiss the application.
5. In a rejoinder, the applicant stated that he admits committed the offence and asked for forgiveness. He said he was 35 years at the time he was jailed and he is now 55 years old.
ANALYSIS AND DETERMINATION
6. The applicant herein was sentenced to death being the mandatory sentence provided by statute. The sentence was later commuted to life imprisonment. Mandatory nature of sentences was however declared unconstitutional by Supreme Court in Francis Karioko Muruatetu Vs Republic [2017] eKLR as it takes away the discretion of the trial Court to determine sentence to impose upon considering circumstances of the case and mitigating factors of the offenders. The Supreme Court found that the taking away of discretion of the Court renders the mitigating factors superfluous.
7. There is no doubt that the offence committed by the applicant was serious and he deserved deterrent sentence. The applicant however regrets his action and has taken his being in prison positively and learnt skill of carpentry which will enable him earn a living if released.
8. I take note of the fact that the offence committed by the applicant was serious. His actions must have definitely caused physical and mental anguish to the victim. He has however served considerable number of years in prison which must have given him an opportunity for self-reflection and resolve to change into a law-abiding citizen. In view of the above I am inclined to reduce his imprisonment period and hereby reduce to 30 years’ imprisonment.
9. FINAL ORDERS
1. Sentence is hereby reduced to 30 years’ imprisonment.
2. The sentence to run from the date the applicant was sentenced in the lower court.
Ruling dated, signed and delivered via zoom at Nakuru This 30th day of July, 2020
RACHEL NGETICH
JUDGE
In the presence of:
Jeniffer - Court Assistant
Applicant in person
Rita for State