[2021] KEHC 6285 (KLR)
The court held that the Supreme Court's decision in Muruatetu, which declared the mandatory death sentence for murder unconstitutional, applies equally to the mandatory death sentence for robbery with violence under section 296(2) of the Penal Code. The court found that it had jurisdiction to review the appellant's...
Source-derived case information.
- Citation
- [2021] KEHC 6285 (KLR)
- Parties
- Appellant: Endoket Ondan Lotelewa; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 350 of 1998
- Procedural Posture
- Criminal Appeal / Application for Re Sentencing After Supreme Court Decision
- Outcome
- Sentence of death set aside and substituted with time served; appellant to be released unless otherwise lawfully held.
- Judges
- DW Mbuteti
- Legal Topics
- Robbery With Violence, Mandatory Sentencing, Resentencing, Death Penalty, Constitutional Review
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Endoket Ondan Lotelewa
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Application for Re Sentencing After Supreme Court Decision
Legal Issues
- 1 Whether the mandatory death sentence for robbery with violence under section 296(2) of the Penal Code is unconstitutional following the Supreme Court decision in Muruatetu.
- 2 Whether the court has jurisdiction to review and resentence the appellant in light of the Supreme Court's decision.
- 3 What is the appropriate sentence for the appellant given the circumstances of the offence and the period already served.
Ratio Decidendi
The court held that the Supreme Court's decision in Muruatetu, which declared the mandatory death sentence for murder unconstitutional, applies equally to the mandatory death sentence for robbery with violence under section 296(2) of the Penal Code. The court found that it had jurisdiction to review the appellant's sentence. Considering the circumstances of the offence—where firearms were used but no one was seriously injured—and the fact that the appellant had already served nearly twenty-one years in prison, the court determined that the sentence of death was not appropriate. The court substituted the death sentence with a sentence equivalent to the time already served, ordering the...
Court Disposition
Sentence of death set aside and substituted with time served; appellant to be released unless otherwise lawfully held.
Orders
- The sentence of death imposed upon the appellant is set aside.
- The sentence is substituted with the period already served.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NYERI
CRIMINAL APPEAL NO 350 OF 1998
ENDOKET ONDAN LOTELEWA.................APPELLANT
VERSUS
REPUBLIC................................................RESPONDENT
APPLICATION FOR RE-SENTENCING
HEARD AT THE HIGH COURT, NANYUKI
RULING AND RE-SENTENCING
1. The Appellant herein, ENDOKET ONDAN LOTELEWA, was convicted of robbery with violence contrary to section 296(2) of the Penal Code and sentenced to death vide Nanyuki SRM Criminal Case No 1323 of 1997. He appealed vide the present appeal against both conviction and sentence. His appeal was dismissed in a judgment delivered on 19/10/1999 (Juma & Mulwa, JJ).
2. The Appellant’s second appeal to the Court of Appeal at Nyeri (Criminal Appeal No 7 of 2000) was also dismissed. His death sentence had in the meantime been commuted to life imprisonment by executive clemency.
3. Following the declaration by the Supreme Court of Kenya in the now notorious case of Muruatetu that the mandatory nature of the death sentence under section 204 of the Penal Code for the offence of murder contrary to section 203 of the Penal Code was unconstitutional, the Appellant applied to this court to review his sentence as meted out to him by the trial court.
4. By parity of reasoning, the aforesaid declaration by the apex court must apply in equal measure to the mandatory nature of the death sentence under section 296(2) of the Penal Code for the offence of robbery with violence. This court therefore has jurisdiction to review the Appellant’s sentence. Learned counsel for the Respondent has conceded this issue of jurisdiction.
5. I have taken into account the circumstances in which the offence was committed, including the fact that the Appellant and the other robbers were armed with a firearms. I note that the firearms were fired into the air and nobody was seriously injured in the course of the robbery. But the psychological effect of the terror accompanying the robbery upon the victims cannot be understated. I am persuaded that the sentence of death imposed was not appropriate in the circumstances of this case. A fairly long term of imprisonment would have served the ends of justice.
6. The Appellant has been serving sentence since 18/08/1998, a period now of nearly twenty-one (21) years. That is a long time. He has now paid his debt to society. He should have another chance at life outside prison walls.
7. In the circumstances, I will set aside the sentence of death imposed upon the Appellant and substitute therefor the time already served. The Appellant shall therefore be set at liberty forthwith unless otherwise lawfully held. It is so ordered.
DATED AND SIGNED AT NANYUKI THIS 9TH DAY OF JUNE 2021
H P G WAWERU
JUDGE
DELIVERED AT NANYUKI THIS 10TH DAY OF JUNE 2021