[2018] KEHC 512 (KLR)
The court held that, following the Supreme Court's decision in Muruatetu, the mandatory death sentence for robbery with violence is unconstitutional. The court is required to consider mitigating factors, including the petitioner's status as a first offender, the period spent in pre-trial custody, and evidence of...
Source-derived case information.
- Citation
- [2018] KEHC 512 (KLR)
- Parties
- Appellant: Dennis Keire Osoro; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Constitutional Petition 66 of 2014
- Procedural Posture
- Constitutional Petition / Re Sentencing After Supreme Court Decision Declaring Mandatory Death Sentence Unconstitutional
- Outcome
- petition allowed; petitioner re-sentenced
- Judges
- REA Ougo
- Legal Topics
- Right to Fair Trial, Sentencing Guidelines, Death Penalty, Mitigating Factors, Unconstitutionality of Mandatory Sentences
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Dennis Keire Osoro
Appellant
Republic
Respondent
Procedural Posture
Constitutional Petition / Re Sentencing After Supreme Court Decision Declaring Mandatory Death Sentence Unconstitutional
Legal Issues
- 1 Whether the mandatory death sentence for robbery with violence is unconstitutional in light of the Supreme Court decision in Muruatetu.
- 2 What is the appropriate sentence for the petitioner considering the mitigating factors and period spent in pre-trial custody.
Ratio Decidendi
The court held that, following the Supreme Court's decision in Muruatetu, the mandatory death sentence for robbery with violence is unconstitutional. The court is required to consider mitigating factors, including the petitioner's status as a first offender, the period spent in pre-trial custody, and evidence of reform and good conduct in prison. Taking these factors into account, the court found that a sentence of 15 years' imprisonment, commencing from the date of the original sentencing (16th December 2008), was appropriate and just in the circumstances.
Court Disposition
petition allowed; petitioner re-sentenced
Orders
- The petitioner is re-sentenced to 15 years' imprisonment commencing from 16th December 2008.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISII
CONS. PETITION NO. 66 OF 2014
IN THE MATTER OF ARTICLES 22(1) (2) (B) 21 (1)(2) (2) (4) (A) OF THE CONSTITUTION OF KENYA2010
IN THE MATTER CONTROVENTION OF FUNDAMENTAL RIGHTS AND FRREDOMS UNDER ARTICLES 25 (a) (c) 26 (1) 27 (1) (2) 28 29 (a) (s) (f) 48AND ARTICLES 50(1) (2) (H) (P) 6(a) (b) OF THE CONSTITUTION OF KENYA.
AND
ARTICLES 23(1) (1) AS READ WITH ARTICLES 165 OF THE PENAL CODE WHICH HAVE BEEN
DECLARED UNCONSTITUTIONAL BY THE SUPREME COURT OF KENYA ON 14TH DAY OF DECEMBER 2017
DENNIS KEIRE OSORO........................PETITIONER
-VERSUS-
REPUBLIC...............................................RESPONDENT
JUDGMENT
1. The Petitioner was charged with Robbery with violence and sentenced to death. His appeal before the High Court and the Court of Appeal were not successful. The Supreme Court in Francis Karioko Muruatetu & Another vs Republic SCK Pet.15 of 2015 [2017] Eklrheld that the death sentence is unconstitutional. The petitioner seeks re-sentencing.
2. The Supreme Court in Muruatetu Case (Supra at para. 71), considered that in re-sentencing in a case of murder, the following mitigating factors would be applicable;
(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-adaptation of the offender;
(h) any other factor that the Court considers relevant.
3. The petitioner was convicted of the offence of robbery with violence contrary to section 296(2). I have considered the circumstance of the case. The petitioner was a first offender. The petitioner remained in pre-trial custody from 2007 to December 2008. Whilst sentencing the petitioner I have to take into account the period spent in pre-trial custody by dint of the proviso to section 333(2) of the Criminal Procedure Code (Chapter 75 of the Laws of Kenya). I have also considered the report from prison which states that he had demonstrated exemplary behavior and that he is currently in charge of all convicted prisoners a task he has performed to the satisfaction of both inmates and the entire staff of Kisii main prison. That he is well reformed and a role model to other reforming inmates.
4. 10. Considering the entirety of the facts, I re-sentence the petitioner to 15 years’ imprisonment commencing the date of sentencing before the trial court that is from 16th December 2008.
Dated, signed and delivered this 11thday of December 2018.
R.E. OUGO
JUDGE
In the presence of
Appellant In person
Mr. Otieno Senior Prosecution Counsel
Ms. Rael Court Clerk