[2020] KEHC 7557 (KLR)
The court held that following the Supreme Court's decision in Muruatetu, the mandatory death sentence for robbery with violence is unconstitutional, and courts must exercise discretion in sentencing by considering mitigating and aggravating factors. In this case, the petitioner and his accomplices committed a grave...
Source-derived case information.
- Citation
- [2020] KEHC 7557 (KLR)
- Parties
- Appellant: Julius Waswa; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Criminal Petition 74 of 2018
- Procedural Posture
- Criminal Petition / Application for Resentencing Following Supreme Court Decision on Mandatory Death Penalty
- Outcome
- Death sentence set aside; petitioner resentenced to 22 years' imprisonment from date of conviction.
- Judges
- HK Chemitei
- Legal Topics
- Resentencing, Mandatory Death Penalty, Robbery With Violence, Mitigating Factors, Sentencing Guidelines
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Julius Waswa
Appellant
Republic
Respondent
Procedural Posture
Criminal Petition / Application for Resentencing Following Supreme Court Decision on Mandatory Death Penalty
Legal Issues
- 1 Whether the mandatory death sentence for robbery with violence under Section 296(2) of the Penal Code is unconstitutional in light of the Supreme Court decision in Muruatetu.
- 2 Whether the petitioner is entitled to resentencing and, if so, what sentence is appropriate given the circumstances of the offence.
Ratio Decidendi
The court held that following the Supreme Court's decision in Muruatetu, the mandatory death sentence for robbery with violence is unconstitutional, and courts must exercise discretion in sentencing by considering mitigating and aggravating factors. In this case, the petitioner and his accomplices committed a grave offence involving sexual assault and violence against multiple victims. The court found that the period already served was insufficient given the seriousness of the crime. Guided by sentencing principles, relevant case law, and the aggravating circumstances, the court resentenced the petitioner to twenty-two years' imprisonment from the date of conviction, replacing the death...
Court Disposition
Death sentence set aside; petitioner resentenced to 22 years' imprisonment from date of conviction.
Orders
- The death sentence imposed on the petitioner is set aside.
- The petitioner is resentenced to twenty-two (22) years' imprisonment from 15/06/2012.
Full Case Text
Judgment text and source record
41 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KITALE
CRIMINAL PETITION NO. 74 OF 2018
JULIUS WASWA......................................................................PETITIONER
VERSUS
REPUBLIC...............................................................................RESPONDENT
RULING
1. The petitioner was convicted of the offence of robbery with violence contrary to Section 296 (2) of the Penal Code and sentenced to death on in Kitale Cmcr Case No. 1540 of 2011on 15/06/2012. His first appeal to the High Court was unsuccessful.
2. The petitioner has now filed the instant application seeking for re-sentencing which has been necessitated by the Supreme Court decision in Francis Karioko Muruatetu & Another –Vs- Republic Petition No. 15 of 2015 (2017) eKLR whereby the mandatory death sentence for the offence of murder was declared unconstitutional. As a corollary, in the case of William Okungu Kittiny –Vs- Republic Kisumu Criminal Appeal No. 56 of 2013 (2018) eKLR, the Court of Appeal applied the Muruatetu decision mutatis mutandis to the provisions of Section 296 (2) of the Penal Code which imposes a mandatory death penalty for the offence of robbery with violence. The petitioner is seeking that the death sentences imposed on them be set aside and for the court to impose an appropriate sentence.
3. In Francis Karioko Muruatetu & Another –Vs- Republicthe Supreme Court stated the following guidelines as mitigating factors in a re-hearing sentence for the conviction of a murder charge:-
(a) age of the offender;
(b) being a first offender;
(c) whether the offender pleaded guilty;
(d) character and record of the offender;
(e) commission of the offence in response to gender-based violence;
(f) remorsefulness of the offender;
(g) the possibility of reform and social re-adaptation of the offender and
(h) any other factor that the court considers relevant.
These factors are also applicable in a re-sentencing for the offence of robbery with violence.
4. I have also considered The Sentencing Policy Guidelines, 2016and its application which lists the objectives of sentencing at page 15 paragraph 4. 1 as follows:
1. Retribution: To punish the offender for his/her criminal conduct in a just manner.
2. Deterrence: To deter the offender from committing a similar offence subsequently as well as to discourage other people from committing similar offences.
3. Rehabilitation: To enable the offender reform from his criminal disposition and become a law abiding person.
4. Restorative Justice: To address the needs arising from the criminal conduct such as loss and damages. Criminal conduct ordinarily occasions victims, communities’ and offenders’ needs and justice demands that these are met. Further, to promote a sense of responsibility through the offender’s contribution towards meeting the victims’ needs.
5. Community protection: To protect the community by incapacitating the offender.
6. Denunciation: To communicate the community’s condemnation of the criminal conduct.
5. In determining this Petition, I have considered judgments of Superior Courts that are intended to ensure consistency and fairness. In the case of Wycliffe Wangusi Mafura v Republic ELD CA Criminal Appeal No. 22 of 2016 [2018] eKLR , where the Court of Appeal imposed a sentence of 20 years where the appellant was involved in robbing an Mpesa shop with the use of a firearm with which he threatened the attendant but was caught before he inflicted any violence on her.
6. In Paul Ouma Otieno Vs Republic ( 2018) eKLR where the convict was armed with an AK 47 rifle and a kitchen knife and robbed the complainant of cash Kshs. 450,000/= and 3 mobile phones , Majanja J substituted the death sentence with 20 years’ imprisonment commencing on the date of the sentence by the trial court.
7. I have considered the stated principles of sentencing and the above cited authorities. I have also considered the circumstances in which the offence was committed in that the petitioner the and his colleagues sodomized a small girl and assaulted other persons in the process of committing the offence.
8. I do not think that the period served in prison is sufficient for the serious offence committed by the Petitioner. I hereby re sentence him to Twenty Two (22) years imprisonment from the date he was convicted by the trial court, that is 15/06/2012.
Signed, Dated and Delivered at Kitale on this 5th day of March, 2020.
______________
H.K. CHEMITEI
JUDGE
5/3/2020
In the presence of:-
Ms Kagali for the Respondent
Applicant present
Court Assistant – Kirong
Ruling read in open court.