[2021] KEHC 7006 (KLR)
The court held that, following the Supreme Court's decision in Muruatetu and subsequent appellate authority, the mandatory death sentence for robbery with violence is unconstitutional and sentencing is now discretionary. The court considered both mitigating and aggravating factors: the petitioners were first...
Source-derived case information.
- Citation
- [2021] KEHC 7006 (KLR)
- Parties
- Appellant: John Munene Gitiye; Appellant: John Mutuma Rukunga; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Criminal Petition 136 of 2018
- Procedural Posture
- Criminal Petition / Resentencing After Conviction and Dismissal of Appeals
- Outcome
- Petition for resentencing allowed; sentences substituted.
- Judges
- TW Cherere
- Legal Topics
- Robbery With Violence, Mandatory Sentencing, Resentencing Guidelines, Gang Rape, Mitigating and Aggravating Factors
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Munene Gitiye
Appellant
John Mutuma Rukunga
Appellant
Republic
Respondent
Procedural Posture
Criminal Petition / Resentencing After Conviction and Dismissal of Appeals
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 in light of time served and rehabilitation.
- 3 What is the appropriate sentence for robbery with violence and gang rape considering the aggravating and mitigating circumstances.
Ratio Decidendi
The court held that, following the Supreme Court's decision in Muruatetu and subsequent appellate authority, the mandatory death sentence for robbery with violence is unconstitutional and sentencing is now discretionary. The court considered both mitigating and aggravating factors: the petitioners were first offenders and had spent a significant period in custody, but the offences were heinous, involving armed robbery and gang rape, causing severe trauma to the complainant. The court also noted the petitioners had not undertaken any rehabilitative training. Applying the relevant legal principles and statutory provisions, the court resentenced the petitioners to 25 years' imprisonment for...
Court Disposition
Petition for resentencing allowed; sentences substituted.
Orders
- Petitioners are resentenced to 25 years' imprisonment for robbery with violence contrary to section 296(2) of the Penal Code from the date of initial conviction.
- Petitioners are resentenced to 10 years' imprisonment for gang rape contrary to section 10 of the Sexual Offences Act from the date of initial conviction.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MERU
(CORAM: CHERERE-J)
CRIMINAL PETITION NO. 136 OF 2018
BETWEEN
JOHN MUNENE GITIYE.................................................................1ST PETITIONER
JOHN MUTUMA RUKUNGA........................................................2ND PETITIONER
AND
REPUBLIC...............................................................................................RESPONDENT
JUDGEMENT
Introduction
1. The trial court in TIGANIA Criminal Case No. 67 OF 2010,convicted the Petitioners of robbery with violence contrary to section 296(2)of the Penal Code and gang rape contrary to section 10 of the Sexual Offences Act NO. 3 of 2006.
2. Petitioners were sentenced to death for the offence of robbery with violence and 20 years for gang rape.
3. Petitioners’ appeals to the High Court vide Meru High Court Criminal Appeal No. 09 OF 2011and to the Court of Appeal in Nyeri Criminal Appeal No. 39 of 2015 were dismissed and the conviction upheld and sentences confirmed.
4. By a petition filed on 13th May, 2019, the Petitioners have petitioned this court for resentencing. It is their case that they have been incarcerated for 13 years and have been rehabilitated.
5. Ms. Mbithe, learned counsel for the state submitted that the death sentence was still lawful.
Analysis and Determination
6. At the time of the Petitioners’ conviction and sentence, death was the only available sentence for robbery with violence and imprisonment for a term of not less than fifteen years but which may be enhanced to imprisonment for life for the offence of gang rape.
7. The Supreme Court decision in the case of 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 Republic KSM 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.
8. In the case of Michael Kathewa Laichena & another v Republic [2018] eKLR, Majanja J, précised the procedure that a court considering resentencing. The court further stated that the Guidelines do not replace judicial discretion but are intended to promote transparency, consistency and fairness in sentencing.
9. 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.
10. The maximum sentence for simple robbery is 14 years’ imprisonment. The mitigating circumstances in this case are that the Petitioners could be considered first offenders. The aggravating factors are that the Petitioners were armed with a firearm and not only robbed and injured the complainant but also gang raped her.
11. The Petitioners have been incarcerated for the last 11 years. The offences against the complainant were heinous and must have occasioned her severe trauma and suffering.
12. Petitioners have not undertaken any form of training as a way of reformation. Petitioners are resentenced to an imprisonment term of 25 years for robbery with violence contrary to section 296(2)of the Penal Code and 10 years for gang rape contrary to section 10 of the Sexual Offences Act from date of initial conviction within which time it is hoped that will for undertake some form of training as a way of reformation.
DELIVERED AT MERU THIS 13th DAY OF May 2021
T. W. CHERERE
JUDGE
In the presence of-
Court Assistant - Kinoti
1st Petitioner - Present in person
2nd Petitioner -Present in person
For the State - Ms. Mbithe