[2019] KEHC 7177 (KLR)
The court held that, following the Supreme Court's decision in Muruatetu and subsequent Court of Appeal authority, the mandatory death sentence for robbery with violence is unconstitutional and sentencing is now discretionary. The court considered the aggravating factors (use of actual violence, armed with pangas,...
Source-derived case information.
- Citation
- [2019] KEHC 7177 (KLR)
- Parties
- Petitioner: Evans Otieno Ogutu; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Petition 3 of 2019
- Procedural Posture
- Constitutional Petition / Resentencing After Conviction and Appeals Exhausted
- Outcome
- petition for resentencing allowed; sentence substituted
- Judges
- TW Cherere
- Legal Topics
- Resentencing, Mandatory Death Sentence, Robbery With Violence, Mitigating Factors, Sentence Remission
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Evans Otieno Ogutu
Petitioner
Republic
Respondent
Procedural Posture
Constitutional Petition / Resentencing After Conviction and Appeals Exhausted
Legal Issues
- 1 Whether the petitioner is entitled to resentencing following the Supreme Court decision declaring the mandatory death sentence unconstitutional.
- 2 What is the appropriate sentence for the petitioner considering the circumstances of the offence and time already served.
Ratio Decidendi
The court held that, following the Supreme Court's decision in Muruatetu and subsequent Court of Appeal authority, the mandatory death sentence for robbery with violence is unconstitutional and sentencing is now discretionary. The court considered the aggravating factors (use of actual violence, armed with pangas, offences committed at night) and mitigating factors (petitioner as a first offender, period already served of about 16 years). The court also took into account the Sentencing Policy Guidelines and the need for consistency with comparable cases. Ultimately, the court found that a sentence of 20 years' imprisonment from the date of conviction was appropriate, and that the...
Court Disposition
petition for resentencing allowed; sentence substituted
Orders
- The petitioner is resentenced to 20 years' imprisonment from the date of conviction.
- The petitioner is entitled to benefit from remission of sentence if he meets the conditions.
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.03 OF 2019
BETWEEN
EVANS OTIENO OGUTU............PETITIONER
AND
REPUBLIC.................................RESPONDENT
JUDGMENT
Introduction
1. EVANS OTIENO OGUTU, (hereinafter referred to as the petitioner) was convicted and sentenced to death for two counts of robbery with violence contrary to section 296(2) of the Penal Codein Kisumu Criminal Case No. 140 of 2003. He lodged an appeal in Kisumu High Court Criminal Appeal No. 398 of 2003 which was dismissed and the conviction and sentence were upheld. His appeal Criminal Appeal No. 323 of 2008to the Court of Appeal was likewise dismissed and the conviction and sentence upheld.
2. By a petition filed on 12th March, 2019, the petitioner has petitioned this court for resentencing.
3. Mr. Muia, learned counsel for the state submitted that the complainants were robbed and injured. The state urged the court to direct that the petitioner served 15 more years over and above the period he had served.
Analysis and Determination
4. At the time of the petitioner’s conviction, death was the only available sentence for robbery with violence.
5. The Supreme Court decision in Francis Karioki Muruatetu & Another v Republic & 5 others [2016] eKLR declaring the mandatory death sentence unconstitutional has necessitated resentencing of all persons previously sentenced to the mandatory death sentence. In the case of William Okungu Kittiny v RepublicKSM CA Criminal Appeal No. 56 of 2013 [2018] eKLR, the Court of Appeal applied the Muruatetu Case (Supra) mutatis mutandis to the provisions of section 296(2) of the Penal Code(Chapter 63 of the Laws of Kenya) which imposes the mandatory death penalty for the offence of robbery with violence and held that death was a discretionary maximum sentence.
6. I have considered the 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).
7. The maximum sentence for simple robbery is 14 years’ imprisonment. The mitigating circumstances in this case are that the petitioner could be considered a first offender. The facts from the record shows that the offences took place at night and the robbers although armed with pangas used actual violence on the two complainants.
8. 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 petitioner has served about 16 years since conviction.
9. I have considered judgments of Superior Courts that are intended to ensure consistency and fairness. In the case of Wycliffe Wangusi Mafura v RepublicELD CA Criminal Appeal No. 22 of 2016 [2018] eKLR , the Court of Appeal imposed a sentence of 20 years where the appellant was involved in robbing an Mpesa shop with the use of a firearm with which he threatened the attendant but was caught before he inflicted any violence on her. In Robert AchapaOkello v Republic [2018] eKLR, court resentenced the Petitioner who had been in custody for 15 years to period served on account of the fact that no violence was meted on the complainants.
10. After considering all the mitigating and aggravating factors, the fact that the petitioner and others committed two robberies with violence and the fact that the petitioner has been in custody for about 16 years, I re-sentence him to20 yearsimprisonment from date of conviction.
11. Further to the foregoing, the Petitioner’s sentence having been commuted to a definite imprisonment term is also entitled to benefit from remission of sentence if he meets the conditions. It is so ordered.
DATED AND SIGNED IN KISUMU THIS 16thDAY OF May,2019
T. W. CHERERE
JUDGE
Read in open court in the presence of-
Court Assistant- Felix
Petitioner- Present in person
For the State- Ms Gatho