[2020] KEHC 7679 (KLR)
The court found that the mandatory death sentence for robbery with violence is unconstitutional, following the Supreme Court's decision in Muruatetu. The court considered the period already served by the petitioners, their conduct and rehabilitation while in custody, and the aggravating circumstances of the offence,...
Source-derived case information.
- Citation
- [2020] KEHC 7679 (KLR)
- Parties
- Appellant: Elisha Omukaya Muyeya alias Dorobo; Appellant: Charles Mukuna Ominde; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Petition 63 & 64 of 2019
- Procedural Posture
- Criminal Resentencing Application / Judgment
- Outcome
- Petition for resentencing allowed; original sentences set aside and substituted with new custodial terms.
- Judges
- TW Cherere
- Legal Topics
- Resentencing, Mandatory Sentences, Robbery With Violence, Rape, Mitigating Factors, Custodial Period Credit
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Elisha Omukaya Muyeya alias Dorobo
Appellant
Charles Mukuna Ominde
Appellant
Republic
Respondent
Procedural Posture
Criminal Resentencing Application / Judgment
Legal Issues
- 1 Whether the mandatory death sentence for robbery with violence is unconstitutional in light of the Supreme Court decision in Muruatetu.
- 2 Whether the petitioners are entitled to resentencing based on time served and mitigating factors.
- 3 What is the appropriate sentence for each petitioner considering the circumstances of the offence and period already served.
Ratio Decidendi
The court found that the mandatory death sentence for robbery with violence is unconstitutional, following the Supreme Court's decision in Muruatetu. The court considered the period already served by the petitioners, their conduct and rehabilitation while in custody, and the aggravating circumstances of the offence, including injury to the complainant and, for the 1st petitioner, the commission of rape. Applying the Sentencing Policy Guidelines and section 333(2) of the Criminal Procedure Code, the court determined that a resentencing was warranted. The 1st petitioner was resentenced to 25 years' imprisonment from the date of conviction, with the rape sentence to run concurrently, while...
Court Disposition
Petition for resentencing allowed; original sentences set aside and substituted with new custodial terms.
Orders
- Elisha Omukaya Muyeya alias Dorobo is resentenced to 25 years' imprisonment from 13th July, 2007; the 5-year sentence for rape to run concurrently.
- Charles Mukuna Ominde is resentenced to 15 years' imprisonment from 13th July, 2007.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISUMU
(CORAM: CHERERE-J)
PETITION NO. 63 & 64 OF 2019
(Consolidated)
BETWEEN
ELISHA OMUKAYA MUYEYA alias Dorobo.…..1ST PETITIONER
CHARLES MUKUNA OMINDE.…..…..………...2ND PETITIONER
AND
REPUBLIC………………………….....……….………RESPONDENT
JUDGEMENT
Introduction
1. On 13th July, 2007, the trial court in NYANDO CRIMINAL CASE NO.1304 OF 2006 convicted and sentenced the Petitioners to death for the offence of robbery with violence contrary to section 296(2)of the Penal Code The death sentence was later commuted to life imprisonment.
2. Petitioners lodged appeals KISUMUHIGH COURT CRIMINAL APPEAL NO. 72 and 73 of 2006which were dismissed on 26th June, 2007 whereupon the conviction and sentence were confirmed. Their appeal to the Court of Appeal vide KISUMU CRIMINAL APPEAL NO. 101 OF 2007 was similarly dismissed and the conviction and sentence confirmed.
3. Petitioners have petitioned the court for resentencing. Ms. Gathu, learned counsel for the state submitted that the petition was not opposed and proposed that the Petitioners who not only robbed the complainant but injured her hand be resentenced to 40 years.
Analysis and Determination
4. The Supreme Court’s decision in Francis KariokiMuruatetu& Another v Republic & 5 others [2016] eKLR declaring the mandatory death sentence unconstitutional has necessitated resentencing of all persons previously sentenced to the mandatory minimum and maximum sentences.
5. I have considered The Sentencing Policy Guidelines, 2016and its application which is intended to promote transparency, consistency and fairness in sentencing (See Michael Kathewa Laichena & another v Republic [2018] eKLR).
6. 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 court record shows that the Petitioners have served 14 years since the date of conviction.
7. The 1st Petitioner has undertaken training and obtained various certificates as a way of reformation. I have considered all the mitigating and aggravating factors.
8. ELISHA OMUKAYA MUYEYA alias Dorobo, the 1st Petitioner, not only robbed the complainant but also raped her. He is resentenced to serve 25 years from 13th July,2007 when he was convicted. The 5-year sentence on the count of rape shall run concurrently with this sentence.
9. CHARLES MUKUNA OMINDE, the second Petitioner is resentenced to 15 years from 13th July, 2007 when they were convicted.
DELIVERED AND SIGNED IN KISUMU THIS 27TH DAY OF FEBRUARY 2020
T. W. CHERERE
JUDGE
In the presence of-
Court Assistant - Amondi/Okodoi
Petitioner - Present in person
For the State - Ms. Maureen