[2020] KEHC 2961 (KLR)
The court found that, in light of the Supreme Court decision in Francis Karioko Muruatetu & another vs. Republic [2017] eKLR, the mandatory death sentence for attempted robbery with violence is unconstitutional. The petitioners had not been given an opportunity to mitigate at the time of sentencing due to the...
Source-derived case information.
- Citation
- [2020] KEHC 2961 (KLR)
- Parties
- Applicant: Dickens Odari Bige; Applicant: David Ruto Sirwon; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Petition 10 &11; of 2019
- Procedural Posture
- Constitutional Petition / Resentencing Ruling After Conviction and Exhaustion of Appeals
- Outcome
- Death sentence set aside; petitioners resentenced to period served and ordered released unless otherwise lawfully held.
- Judges
- DN Musyoka
- Legal Topics
- Mandatory Sentencing, Resentencing, Attempted Robbery With Violence, Death Penalty, Mitigation, Penal Code
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Dickens Odari Bige
Applicant
David Ruto Sirwon
Applicant
Republic
Respondent
Procedural Posture
Constitutional Petition / Resentencing Ruling After Conviction and Exhaustion of Appeals
Legal Issues
- 1 Whether the mandatory death sentence for attempted robbery with violence is unconstitutional in light of recent jurisprudence.
- 2 Whether the petitioners are entitled to resentencing based on the Supreme Court decision in Francis Karioko Muruatetu & another vs. Republic [2017] eKLR.
- 3 What sentence is appropriate given the circumstances of the offence and the period already served.
Ratio Decidendi
The court found that, in light of the Supreme Court decision in Francis Karioko Muruatetu & another vs. Republic [2017] eKLR, the mandatory death sentence for attempted robbery with violence is unconstitutional. The petitioners had not been given an opportunity to mitigate at the time of sentencing due to the mandatory nature of the penalty. Considering the circumstances of the offence—where the petitioners were armed but did not physically assault the complainant and nothing was stolen—and the fact that they had already served fifteen years in prison, the court held that the death sentence should be set aside. The appropriate sentence was determined to be imprisonment for the period...
Court Disposition
Death sentence set aside; petitioners resentenced to period served and ordered released unless otherwise lawfully held.
Orders
- The death sentence imposed on the petitioners is set aside.
- The petitioners are sentenced to imprisonment for the period already served since 13th October 2005.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KAKAMEGA
PETITIONS NOS. 10 AND 11 OF 2019
DICKENS ODARI BIGE......1ST PETITIONER
DAVID RUTO SIRWON.....2ND PETITIONER
VERSUS
REPUBLIC..............................RESPONDENT
RULING
1. The petitioners herein were convicted in Kakamega CMCCRC No. 296 of 2005, of attempted robbery with violence, contrary to section 297(2) of the Penal Code, Cap 63, Laws of Kenya, and sentenced to death. They filed appeals at the High Court, being Kakamega HCCRA Nos. 143 and 144 of 2005, in which the convictions and sentences were affirmed on 4th June 2008. They filed a second appeal at the Court of Appeal, Kisumu CACRA No. 649 of 2010, where the convictions and sentences were affirmed.
2. There are recent developments in the Kenyan jurisprudence with regard to mandatory sentences. The Court of Appeal and the Supreme Court has led the way. It is from that background that the petitioners moved this court, in the instant cause, through their separate petitions, which I am hereby disposing of simultaneously. They principally seek re-sentencing in view of the developments that I have referred to hereabove.
3. I note that upon conviction, the petitioners, through counsel, did not mitigate, no doubt given that the sentence available was mandatory, and mitigation would have meant nothing when it came to imposition of sentence. I have noted too the circumstances of the commission of the offence. The petitioners were armed with Somali swords, and they attempted to rob the complainant by threatening to stab him, and demanding that he surrender money to them. Nothing was stolen, and the complainant was not physically assaulted. The petitioners were convicted and sentenced on 13th October 2005. They have so far been in prison custody for fifteen years
4. I shall, and hereby, accordingly, following FrancisKarioko Muruatetu & another vs. Republic [2017] eKLR, set aside the death sentence, and substitute it with a sentence of imprisonment to last the entire period so far served by the petitioners, since their conviction and sentence on 13th October 2005, with the effect that the petitioners herein shall be set free from prison custody forthwith, unless they are otherwise lawfully held. It is so ordered.
DATED, SIGNED AND DELIVERED IN OPEN COURT AT KAKAMEGA THIS 2nd DAY OF October, 2020
W MUSYOKA
JUDGE