[2020] KEHC 4801 (KLR)
The court held that, following the Supreme Court decision in Francis Karioko Muruatetu & another v Republic [2017] eKLR, the mandatory death sentence previously imposed on the applicant was unconstitutional and that the applicant was entitled to resentencing. The court considered the seriousness of the offence and...
Source-derived case information.
- Citation
- [2020] KEHC 4801 (KLR)
- Parties
- Applicant: Dismus Ouma Omusugu; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 89 of 2018
- Procedural Posture
- Miscellaneous Application / Resentencing Application
- Outcome
- sentence reduced to period already served; applicant to be released forthwith
- Judges
- RB Ngetich
- Legal Topics
- Resentencing, Mandatory Sentencing, Robbery With Violence, Mitigation, Rehabilitation, Sentence Reduction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Dismus Ouma Omusugu
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Application / Resentencing Application
Legal Issues
- 1 Whether the applicant is entitled to resentencing following the Supreme Court decision in Francis Karioko Muruatetu & another v Republic [2017] eKLR.
- 2 Whether the mandatory death sentence imposed for robbery with violence is excessive and should be reduced in light of the applicant's circumstances.
Ratio Decidendi
The court held that, following the Supreme Court decision in Francis Karioko Muruatetu & another v Republic [2017] eKLR, the mandatory death sentence previously imposed on the applicant was unconstitutional and that the applicant was entitled to resentencing. The court considered the seriousness of the offence and the aggravating circumstances, including the use of dangerous weapons. However, the court also took into account the applicant's 20 years of imprisonment, evidence of rehabilitation, and his potential to contribute positively to society as a trained footballer and trainer. Balancing these factors, the court found that the period already served was sufficient punishment and that...
Court Disposition
sentence reduced to period already served; applicant to be released forthwith
Orders
- The applicant’s sentence is reduced to sentence already served.
- Applicant to be released forthwith.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAKURU
MISC.APPL NO.89 OF 2018
DISMUS OUMA OMUSUGU.....................APPLICANT
-VERSUS-
REPUBLIC..............................................RESPONDENT
RULING
1. This is a ruling on application for resentencing. The applicant had been charged and convicted off the offence of Robbery with Violence Contrary to Section 296(2) of the Penal Code. He was sentenced to death. The Applicant has exhausted his right of appeal by filing appeal in both the High Court and Court of Appeal.
2. The applicant relied on the case of Francis Karioko Muruatetu Vs Republic [2017] eKLRto argue that the mandatory death sentence imposed by the trial court and upheld by the High Court is excessive and harsh and sought an appropriate sentence.
3. The applicant orally submitted that he has served sentence for 20 years now and has reformed. He stated that he has trained as a footballer and has obtained a certificate as a trainer. He prayed that he be given an opportunity to go back to the community.
4. In response, the state counsel urged the Court to consider aggravating circumstances and the fact that the applicant used dangerous weapons; pangas and rungus while committing the offence.
ANALYSIS AND DETERMINATION
5. I have considered the application herein. I do agree with the applicant that in view of decision in the case of Francis Karioko Muruatetu & another v Republic [2017] eKLRhe deserves resentencing as the trial court at the time he was convicted imposed the mandatory death sentence as was provided by statute. The sentence was later commuted to life sentence. The applicant now prays for reduction of the sentence. He has now served 20 years’ imprisonment. He states that he has trained as a footballer and will benefit the community by being a football trainer.
6. Whereas I do agree that the offence committed was serious and the applicant deserved deterrent sentence, the 20-year period the applicant has served has given him an opportunity to reflect his life and make a resolve to reform and be of benefit to the society.
7. In my view, the applicant deserves an opportunity to rejoin the community and contribute in national development out of prison.
8. FINAL ORDER
1. The applicant’s sentence is reduced to sentence already served.
2. Applicant to be released forthwith.
Ruling dated, signed and delivered via zoom at Nakuru This 18th day of June, 2020
......................................
RACHEL NGETICH
JUDGE
In the presence of:
Schola - Court Assistant
Applicant in person present
Rita for State