[2020] KEHC 9037 (KLR)
The court found that, following the Supreme Court's decision in Muruatetu and subsequent jurisprudence, the mandatory death penalty for robbery with violence is unconstitutional as it removes judicial discretion. The petitioner, having been convicted under a mandatory sentencing regime, is entitled to resentencing....
Source-derived case information.
- Citation
- [2020] KEHC 9037 (KLR)
- Parties
- Petitioner: Geoffrey Makokha; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Criminal Petition 25 of 2019
- Procedural Posture
- Criminal Petition / Resentencing After Conviction and Exhaustion of Appeals
- Outcome
- Petition allowed. Death sentence set aside. Petitioner released from prison and placed on probation for fourteen months.
- Judges
- DN Musyoka
- Legal Topics
- Mandatory Sentencing, Resentencing, Robbery With Violence, Death Penalty, Mitigation, Proportionality in Sentencing
- 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
Geoffrey Makokha
Petitioner
Republic
Respondent
Procedural Posture
Criminal Petition / Resentencing After Conviction and Exhaustion of Appeals
Legal Issues
- 1 Whether the petitioner is entitled to resentencing following recent jurisprudence on mandatory sentences.
- 2 Whether the death penalty imposed should be set aside in light of developments in sentencing law.
- 3 Whether parity and consistency in sentencing require the petitioner to be treated equally with co-convicted persons.
Ratio Decidendi
The court found that, following the Supreme Court's decision in Muruatetu and subsequent jurisprudence, the mandatory death penalty for robbery with violence is unconstitutional as it removes judicial discretion. The petitioner, having been convicted under a mandatory sentencing regime, is entitled to resentencing. The court further held that, for purposes of parity and consistency, the petitioner should be treated in the same manner as his co-convicted, who had his death sentence set aside and was placed on probation. Accordingly, the death sentence was set aside, and the petitioner was ordered to be released from prison and placed under probation for fourteen months.
Court Disposition
Petition allowed. Death sentence set aside. Petitioner released from prison and placed on probation for fourteen months.
Orders
- The death penalty imposed on the petitioner is set aside.
- The petitioner is to be released from prison custody.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KAKAMEGA
CRIMINAL PETITION NO. 25 OF 2019
GEOFFREY MAKOKHA..................................................................PETITIONER
VERSUS
REPUBLIC.......................................................................................RESPONDENT
RULING
1. The petitioner herein was convicted in Kakamega CMCCRC No. of 1663 of 2003, of robbery with violence, contrary to section 296(2) of the Penal Code, Cap 63, Laws of Kenya, and sentenced to death. The petitioner filed an appeal at the High Court, Kakamega HCCRA No. 65 of 2008, where the conviction was affirmed and the sentence upheld. An appeal to the Court of Appeal, Kisumu 573 of 2010, was equally dismissed.
2. There are recent developments in the Kenyan jurisprudence with respect to mandatory sentences. The Court of Appeal and the Supreme Court have led the way. It is from that background that the petitioner moved this court in the instant cause, through an undated petition, filed herein on 17th April 2018. The same principally seeks re-sentencing in view of the developments that I have referred to here above.
3. I note that upon conviction, the petitioner did not plead for leniency. However, I do not think the same should be taken against him, given that the penalty for the offence he was convicted of was mandatory, and the hands of the court were tied. Mitigation would have been nothing more than an academic exercise.
4. The petitioner had been tried and convicted jointly with Philip Andati Nangambo and Daniel Sifuna Juma. Daniel Sifuna Juma filed Kakamega HC Constitutional Petition No. 22 of 2018, which was determined by Njagi J on 31st July 2019. Njagi J found that the prison punishment was enough for the petitioner, he set aside the death sentence, ordered his release from prison custody and placed him on two years’ probation.
5. For the purpose of achieving uniformity, parity, consistency and proportionality in sentencing, by ensuring that persons found guilty of committing the same offence are treated equally, I hereby direct that the petitioner herein be treated equally with the petitioner in Kakamega HC Constitutional Petition No. 22 of 2018.
6. I, therefore, hereby set aside the death penalty imposed on the petitioner herein, I order that the petitioner be released from prison custody and I hereby place him under probation for fourteen (14) months, under the supervision of the Probation Officer, Kakamega Central. It is so ordered.
DATED, SIGNED and DELIVERED in open court at KAKAMEGA this 17th DAY OF January, 2020
W MUSYOKA
JUDGE