[2019] KEHC 7158 (KLR)
The court found that the mandatory death sentence for robbery with violence, previously imposed on the petitioners, was unconstitutional following the Supreme Court's decision in Muruatetu. The court exercised its discretion to resentence, taking into account both aggravating and mitigating factors. Aggravating...
Source-derived case information.
- Citation
- [2019] KEHC 7158 (KLR)
- Parties
- Applicant: David Onganyi Alela; Applicant: Enos Kalo Akute; Applicant: Melazadeck Kengo Khamati; Applicant: Eliakim Elishe John; Applicant: Elphas Kengo Onyango; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Criminal Petition 71 of 2018
- Procedural Posture
- Criminal Petition / Resentencing After Conviction and Appeals Exhausted
- Outcome
- Petition for resentencing allowed; petitioners resentenced to 30 years' imprisonment from date of conviction.
- Judges
- TW Cherere
- Legal Topics
- Resentencing, Mandatory Sentences, Robbery With Violence, Rape, Mitigation, Judicial Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
David Onganyi Alela
Applicant
Enos Kalo Akute
Applicant
Melazadeck Kengo Khamati
Applicant
Eliakim Elishe John
Applicant
Elphas Kengo Onyango
Applicant
Republic
Respondent
Procedural Posture
Criminal Petition / Resentencing After Conviction and Appeals Exhausted
Legal Issues
- 1 Whether the mandatory death sentence for robbery with violence is unconstitutional and requires resentencing.
- 2 What is the appropriate sentence for the petitioners considering the aggravating and mitigating circumstances.
- 3 Whether the period already served by the petitioners should be considered in resentencing.
Ratio Decidendi
The court found that the mandatory death sentence for robbery with violence, previously imposed on the petitioners, was unconstitutional following the Supreme Court's decision in Muruatetu. The court exercised its discretion to resentence, taking into account both aggravating and mitigating factors. Aggravating factors included the severity of the offences—robbery with violence, infliction of injuries, and gang rape over an extended period. Mitigating factors included the petitioners' status as first offenders and the 16 years already served in custody. The court determined that a sentence of 30 years' imprisonment from the date of conviction was appropriate, balancing the gravity of the...
Court Disposition
Petition for resentencing allowed; petitioners resentenced to 30 years' imprisonment from date of conviction.
Orders
- Each petitioner is resentenced to an imprisonment term of 30 years from the date of initial conviction.
- Petitioners are entitled to benefit from remission of sentence if they meet the statutory conditions.
Full Case Text
Judgment text and source record
39 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISUMU
(CORAM: CHERERE-J)
CRIMINAL PETITION NO. 71 OF 2018
BETWEEN
DAVID ONGANYI ALELA.........................1ST PETITIONER
ENOS KALO AKUTE.................................2ND PETITIONER
MELAZADECK KENGO KHAMATI......3RD PETITIONER
ELIAKIM ELISHE JOHN.........................4TH PETITIONER
ELPHAS KENGO ONYANGO.................5TH PETITIONER
AND
REPUBLIC........................................................RESPONDENT
JUDGEMENT
Introduction
1. On 7th June, 2003, the trial court in MASENO Criminal Case No.825 OF 2003,the Petitioners were convicted and sentenced to death for 2 counts of robbery with violence contrary to section 296(2)of the Penal Code. They were also convicted for rape contrary to section 140 of the Penal Code.Petitioners lodged an appeal Kisumu High Court Criminal Appeal No. 96 OF 2004which was dismissed on 27th March, 2007 whereupon the conviction and sentences were upheld. The petitioners subsequently appealed to the Court of Appeal in Kisumu Criminal Appeal No. 99 of 2007 and the Court of Appeal similarly upheld his conviction and sentence by a judgment dated 16th January, 2009.
2. By a petition filed on 13th May, 2019, the petitioners have petitioned this court for resentencing.
3. Ms. Gathu, learned counsel for the state submitted that the petition was not opposed and proposed that the petitioners be sentenced to an imprisonment term of 30 years from date of conviction for the reason that the Petitioners beat and robbed two complainants and gang raped another for over 5 hours.
4. Ms. Obiero for the Petitioners urged the court to consider that they had served 16 years and resentence them to period served.
Analysis and Determination
5. At the time of the petitioner’s conviction, death was the only available sentence for robbery with violence and imprisonment for a term of not less than fifteen years but which may be enhanced to imprisonment for life for the offence of gang rape.
5. The Supreme Court decision in the case of Francis Karioki Muruatetu & 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 RepublicKSM 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.
6. In the case of Michael Kathewa Laichena & another v Republic [2018] eKLR, Majanja J, précised the procedure that a court considering resentencing. The court further stated that the Guidelines do not replace judicial discretion but are intended to promote transparency, consistency and fairness in sentencing.
7. The maximum sentence for simple robbery is 14 years’ imprisonment. The mitigating circumstances in this case are that the petitioner could be considered first offenders. The aggravating factors are that the Petitioners not only robbed and injured two of the complainants but also gang raped one for over 5 hours.
8. 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. The Petitioners have served about 16 years from date of conviction.
9. The use of guideline judgments of Superior Courts has also been underlined to ensure consistency and fairness. In PETITION NO.67 OF 2018KEVIN OCHIENG OYUGI vs REPUBLIC (unreported), I resentenced the appellant to 25 years where the robbery was aggravated serious injuries to the complainant.
10. Although the Petitioners are first offenders, it cannot be overlooked that the they committed a heinous crime, and occasioned severe trauma and suffering to the young girl. Their actions are aggravated by gang raping of the complainant which deserves a sentence commensurate to the offences they committed. I have considered that petitioners have already served 16 years, and henceI re-sentence them to an imprisonment term of 30 years from date of initial conviction.
12. Further to the foregoing, the Petitioners’ sentences having been commuted to a definite imprisonment term are also entitled to benefit from remission of sentence if they meet the conditions. It is so ordered.
DATED AND DELIVERED IN KISUMU THIS 30th DAY OF May 2019
T.W. CHERERE
JUDGE
Delivered in open court in the presence of-
Court Assistant - Felix
1st Petitioner - Present
2nd Petitioner - Present
3rd Petitioner - Present
4th Petitioner - Present
5th Petitioner - Present
For the Petitioners -Ms Obiero
For the State -Ms Gatho