[2020] KEHC 8251 (KLR)
The court held that following the Supreme Court's decision in Muruatetu, the mandatory death sentence for robbery with violence is unconstitutional, necessitating resentencing. The court considered the period already served by the petitioners (13 years), their status as first offenders, and individual mitigating...
Source-derived case information.
- Citation
- [2020] KEHC 8251 (KLR)
- Parties
- Appellant: George Ouoma Okoth; Appellant: Caleb Muga Opondo; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Criminal Petition 52 of 2019
- Procedural Posture
- Criminal Petition / Resentencing After Conviction and Appeal Dismissed
- Outcome
- petition for resentencing allowed; sentence varied
- Judges
- TW Cherere
- Legal Topics
- Resentencing, Mandatory Sentences, Robbery With Violence, Mitigation, Custodial Period Credit
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
George Ouoma Okoth
Appellant
Caleb Muga Opondo
Appellant
Republic
Respondent
Procedural Posture
Criminal Petition / Resentencing After Conviction and Appeal Dismissed
Legal Issues
- 1 Whether the mandatory death sentence for robbery with violence is unconstitutional following the Supreme Court decision in Muruatetu.
- 2 Whether the petitioners are entitled to resentencing and what sentence is appropriate considering the period already served and mitigating factors.
Ratio Decidendi
The court held that following the Supreme Court's decision in Muruatetu, the mandatory death sentence for robbery with violence is unconstitutional, necessitating resentencing. The court considered the period already served by the petitioners (13 years), their status as first offenders, and individual mitigating factors, including evidence of reformation by the 1st petitioner. The court found that a sentence of 15 years imprisonment, to run from the date of conviction (13th July 2007), was appropriate and just in the circumstances, taking into account both the seriousness of the offence and the need for fairness and proportionality in sentencing.
Court Disposition
petition for resentencing allowed; sentence varied
Orders
- The petitioners are resentenced to 15 years imprisonment each from 13th July, 2007, the date of conviction.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KISUMU
(CORAM: CHERERE-J)
CRIMINAL PETITION NO. 52 OF 2019
BETWEEN
GEORGE OUMA OKOTH.............................................................1ST PETITIONER
CALEB MUGA OPONDO.............................................................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. 100 and 101 of 2007which were dismissed on 17th June, 2008 whereupon the conviction and sentence were 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 20 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 13 years since the date of conviction.
7. The 1st Petitioner has undertaken training and obtained various certificates as a way of reformation while the 2nd Petitioner has not. After considering all the mitigating and aggravating factors, and the fact that the Petitioners were first offender, I re-sentence them to 15 years from 13th July, 2007 when they were convicted.
DELIVERED AND SIGNED IN KISUMU THIS 20th DAY OF February 2020
T. W. CHERERE
JUDGE
In the presence of-
Court Assistant - Amondi/Okodoi
Petitioner - Present in person
For the State - Ms. Gathu