[2021] KEHC 3633 (KLR)
The court found that the applicant had already benefitted from resentencing following the Supreme Court's decision in the Muruatetu case, and therefore was not entitled to a further review of his sentence or reconsideration of mitigating factors such as age, health, or remorse. However, the court determined that the...
Source-derived case information.
- Citation
- [2021] KEHC 3633 (KLR)
- Parties
- Applicant: Joseph Musotsi Opanda; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E029 of 2021
- Procedural Posture
- Miscellaneous Application / Judgment
- Outcome
- Application partially allowed.
- Legal Topics
- Robbery With Violence, Mandatory Sentencing, Resentencing, Custodial Credit
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Musotsi Opanda
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Application / Judgment
Legal Issues
- 1 Whether the mandatory death sentence for robbery with violence is unconstitutional in light of the Supreme Court decision in the Muruatetu case.
- 2 Whether the applicant is entitled to a further resentencing or consideration of mitigating factors after already being resentenced.
- 3 Whether the period spent in custody prior to conviction should be credited towards the applicant's sentence.
Ratio Decidendi
The court found that the applicant had already benefitted from resentencing following the Supreme Court's decision in the Muruatetu case, and therefore was not entitled to a further review of his sentence or reconsideration of mitigating factors such as age, health, or remorse. However, the court determined that the period the applicant spent in custody prior to conviction—nearly three years—had not been credited towards his sentence. Pursuant to Section 333(2) of the Criminal Procedure Code, the court ordered that this period be credited when calculating the duration of the applicant's 30-year imprisonment sentence. The court rejected the applicant's misleading claim that he was...
Court Disposition
Application partially allowed.
Orders
- The prison authorities shall give credit for the period the applicant spent in custody prior to conviction when calculating the duration of his 30-year sentence.
- No further resentencing or review of mitigating factors is permitted.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KISUMU
MISC. CR. APPLICATION NO. E029 OF 2021
JOSEPH MUSOTSI OPANDA.............................................................APPLICANT
-VERSUS-
REPUBLIC..........................................................................................RESPONDENT
JUDGMENT
The Applicant, JOSEPH OPANDA MUSOTSI, was convicted for the offence of Robbery with Violence, contrary to Section 296 (2)of the Penal Code.
1. He was then sentenced to suffer Death as by law prescribed.
2. When he challenged the conviction and the sentence, the appellate court dismissed his appeal.
3. The Applicant has now lodged an application in which he agonized over the constitutionality of the mandatory nature of the sentence.
4. His submission was that the mandatory sentence was unconstitutional, as was pronounced by the Supreme Court in the Muruatetu case.
5. The Applicant addressed the court thus;
“……. after being tried and the above-mentioned petitioner had their cases commuted from DEATH to LIFE sentences. I therefore humbly wish to plead to the High Court to grant me an order for re-sentencing, given the fact that I have terminated all the appeal avenues ……..”
6. When the application came up before the Court on 12th May 2021, the learned prosecuting counsel, Ms M. Odumba, drew the Court’s attention to the fact that the Applicant had already been re-sentenced on 19th February 2019.
7. In the light of that information, the Applicant admitted that he had already benefitted from the court’s orders on re-sentencing.
8. I have carefully perused the documents which the Applicant lodged before this Court. I noted that in his application he stated thus;
“1. THAT, I was convicted and sentenced to serve 30 years imprisonment for the offence of robbery with violence c/sec 296(2) PC which was ordered to be calculated from the date of conviction.
2. THAT the period I spent in custody was not considered by the trial court.”
9. A perusal of the record of proceedings before the trial court, as well as before the first appellate court reveals that the Applicant was not sentenced to 30 years imprisonment.
10. He was sentenced to suffer Death, as by law prescribed.
11. It therefore struck me that the Applicant was trying to mislead this Court when he stated that the trial court had sentenced him to 30 years imprisonment.
12. Secondly, as the Applicant had already been re-sentenced by the High Court, it would be wrong to urge the said Court to again give consideration to same mitigating factors which informed the said Court’s decision during re-sentencing.
13. Therefore, the issues concerning the Applicant’s age, health and social status cannot be the basis for a further review of the sentence.
14. The Applicant’s remorse and the reformation which he had undergone, can also not be the basis for a further review of the sentence.
15. However, I note that the Applicant remained behind bars throughout his trial. He was arrested on 10th October 2001, and he remained in custody until 3rd September 2004 when he was convicted and sentenced.
16. By my calculations, the period is just under one month shy of 3 years.
17. Pursuant to the provisions of Section 333 (2)of the Criminal Procedure Code, I direct that when calculating the actual duration which the Applicant ought to serve the sentence of 30 Years imprisonment, the prison authorities shall give credit for the period which the Applicant spent in custody whilst he was still on trial.
18. It is so ordered.
DATED, SIGNED AND DELIVERED AT KISUMU THIS 23RD DAY OF SEPTEMBER 2021
FRED A. OCHIENG
JUDGE