[2019] KEHC 1448 (KLR)
The court found 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 Sentencing Policy Guidelines and the period already served by the petitioner. The court noted the aggravating...
Source-derived case information.
- Citation
- [2019] KEHC 1448 (KLR)
- Parties
- Appellant: Joseph Ogutu; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Criminal Petition 39 of 2019
- Procedural Posture
- Criminal Petition / Resentencing After Conviction and Appeals Exhausted
- Outcome
- petition for resentencing allowed; petitioner re-sentenced to 20 years' imprisonment from date of conviction
- Judges
- TW Cherere
- Legal Topics
- Resentencing, Mandatory Sentencing, Robbery With Violence, Constitutional Rights, Sentencing Guidelines
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Ogutu
Appellant
Republic
Respondent
Procedural Posture
Criminal Petition / Resentencing After Conviction and Appeals Exhausted
Legal Issues
- 1 Whether the petitioner is entitled to resentencing following the Supreme Court decision declaring the mandatory death sentence unconstitutional.
- 2 What is the appropriate sentence for the petitioner considering the circumstances of the offence and time already served.
Ratio Decidendi
The court found 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 Sentencing Policy Guidelines and the period already served by the petitioner. The court noted the aggravating factor that the complainant was wounded during the robbery and the mitigating factor that the petitioner was a first offender. The petitioner's claim of illness was refuted by medical evidence. The court determined that a sentence of 20 years' imprisonment, commencing from the date of conviction, was appropriate in the circumstances, balancing the gravity of the offence with the...
Court Disposition
petition for resentencing allowed; petitioner re-sentenced to 20 years' imprisonment from date of conviction
Orders
- The petitioner is re-sentenced to 20 years' imprisonment from 11th April, 2012.
- The period already served in custody shall be taken into account.
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. 39 OF 2019
BETWEEN
JOSEPH OGUTU..........................PETITIONER
AND
REPUBLIC...................................RESPONDENT
JUDGEMENT
Introduction
1. On 11th April, 2012, the trial court in KISUMU CRIMINAL CASE NO.498 OF 2011, convicted and sentenced the Petitioner to 15 years for robbery with violence contrary to section 296(2)of the Penal Code Petitioner lodged an appeal KISUMUHIGH COURT CRIMINAL APPEAL NO. 50 OF 2012which was dismissed on 10th December, 2013 and the sentence substituted with a death penalty. The Petitioner subsequently appealed to the Court of Appeal in KISUMU CRIMINAL APPEAL NO. 11 OF 2014which similarly upheld his conviction and death sentence by a judgment dated 12th February, 2016.
2. The Petitioner has petitioned this court for resentencing. He stated that he had been sick and had not undertaken any training for the time that he was in custody.
3. Ms. Gathu, Senior Prosecution Counsel for the state submitted that the offence was heinous and complainant was wounded during the robbery.
Analysis and Determination
4. At the time of the petitioner’s conviction, death was the only available sentence for robbery with violence.
5. 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 death sentence.
6. 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).
7. 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 petitioner has served 7 years and 9 months since the date of conviction.
8. The complainant was robbed and wounded. The Petitioner has not undertaken any studies as a way of reformation. His allegation that he had been sick was refuted by a medical report dated 21. 11. 19 from Kisumu Maximum Prison’s clinical officer who stated that the Petitioner was treated for TB in 2010 but had recovered.
9. Petitioner is a first offender and has been served 7 years. I re-sentence him to20 years’imprisonment from 11th April, 2012 when he was convicted.
DELIVERED AND SIGNED IN KISUMU THIS 28TH DAY OF NOVEMBER 2019
T. W. CHERERE
JUDGE
In the presence of-
Court Assistant - Okodoi
Petitioner - Present in person
For the State - Ms. Gathu