[2019] KEHC 4702 (KLR)
The court found that, following the Supreme Court's decision in Francis Karioko Muratetu & Another v Republic and the Court of Appeal's affirmation in William Okungu v Republic, the mandatory death penalty for robbery with violence under section 296(2) of the Penal Code is unconstitutional. The court now has...
Source-derived case information.
- Citation
- [2019] KEHC 4702 (KLR)
- Parties
- Applicant: John Kepha Otieno; Applicant: Patrick Ayub Orinda; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 130 of 2010
- Procedural Posture
- Constitutional Petition / Resentencing After Supreme Court Decision; Post Conviction Review
- Outcome
- Application for resentencing allowed. Death sentences set aside. Each applicant resentenced to twenty years' imprisonment from 25th June 2010.
- Legal Topics
- Mandatory Sentencing, Death Penalty, Resentencing, Robbery With Violence, Constitutional Rights, Judicial Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Kepha Otieno
Applicant
Patrick Ayub Orinda
Applicant
Republic
Respondent
Procedural Posture
Constitutional Petition / Resentencing After Supreme Court Decision; Post Conviction Review
Legal Issues
- 1 Whether the mandatory death penalty for robbery with violence under section 296(2) of the Penal Code is unconstitutional in light of the Supreme Court decision in Francis Karioko Muratetu & Another v Republic.
- 2 Whether the petitioners are entitled to resentencing following the declaration of unconstitutionality of the mandatory death penalty.
Ratio Decidendi
The court found that, following the Supreme Court's decision in Francis Karioko Muratetu & Another v Republic and the Court of Appeal's affirmation in William Okungu v Republic, the mandatory death penalty for robbery with violence under section 296(2) of the Penal Code is unconstitutional. The court now has discretion to impose an appropriate sentence based on the circumstances of the case. Considering the seriousness of the offence, the fact that the applicants were armed and injured the complainants, and the period already served in custody (approximately nine years), the court determined that a sentence of twenty years' imprisonment from the date of first incarceration was appropriate...
Court Disposition
Application for resentencing allowed. Death sentences set aside. Each applicant resentenced to twenty years' imprisonment from 25th June 2010.
Orders
- The death sentence imposed on John Kepha Otieno is set aside and substituted with a sentence of twenty (20) years' imprisonment from 25th June 2010.
- The death sentence imposed on Patrick Ayub Orinda is set aside and substituted with a sentence of twenty (20) years' imprisonment from 25th June 2010.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KISII
HCCRA NO. 130 OF 2010
AT KISII
FROM ORIGINAL CR. CASE OF 354 OF 2009 AT SRM’S MIGORI
CONSTITUTION PETITION NO. 54 OF 2018
JOHN KEPHA OTIENO
PATRICK AYUB ORINDA.......................................APPLICANTS
VERSUS
REPUBLIC..............................................................RESPONDENT
JUDGMENT
1. The petitioners JohnKepha Otieno and Patrick Ayub Orinda seeks resentencing. The petitioners were convicted of the offence of robbery with violence contrary to section 296 (2) of the Penal Code and were sentenced to death. Their appeal to the High Court, in HCCR No. 130 of 2010 was dismissed and their second appeal to the Court of Appeal too was dismissed.
2. The petitioners rely on the Supreme Court decision in Francis Karioko Muratetu & Another vs. Republic SCK Petition No. 15 of 2015 declaring the mandatory death penalty unconstitutional. The Court of Appeal’s decision in William Okungu vs. Republic Criminal Appeal No. 56 of 2013held as follows;
[9] From the foregoing, we hold that the findings and holding of the Supreme Court particularly in paragraph 69 applies mutatis mutandis to Section 296 (2) and 297 (2) of the Penal Code. Thus, the sentence of death under Section 296 (2) and 297 (2) of the Penal Code is a discretionary maximum punishment.
3. I have read the proceedings and judgments of the lower court and the High Court. It is clear that during the robbery the applicants were armed, they injured the complainants, noting the circumstances of the case and also noted that the petitioners have been in custody since 25th June 2010, about 9 years. I re-sentence John Kepha Otieno to a period of twenty (20) years from the 25th June 2010. I also re-sentence Patrick Ayub Orinda to a period of twenty (20) years from the 25th June 2010.
Dated signed and delivered at Kisii this 3rd day of July 2019.
R.E.OUGO
JUDGE
In the presence of;
John Kepha Otieno In person
Patrick Ayub Orinda In person
Mr. Otieno Senior Prosecution Counsel Office the DPP
Rael Court clerk