[2025] KEHC 4327 (KLR)

Kilonzo v Republic (Miscellaneous Criminal Application E045 of 2024) [2025] KEHC 4327 (KLR) (27 March 2025) (Ruling)

Neutral citation: [2025] KEHC 4327 (KLR)

Republic of Kenya

In the High Court at Nyahururu

Miscellaneous Criminal Application E045 of 2024

LN Mutende, J

March 27, 2025

Between

Peter Maina Kilonzo

Applicant

and

Republic

Respondent

Ruling

1. Peter Maina Kilonzo, the Applicant, was arrested and indicted for Robbery with Violence contrary to Section 296(2) of the Penal Code; and, Attempted Robbery with violence contrary to Section 297(2) of the Penal Code. He was taken through full trial convicted on three (3) Counts of Robbery with violence and sentenced for thirty (30) years imprisonment on each Count of Robbery Violence, and Twenty (20) years imprisonment on Attempted Robbery with violence, sentences that were to run concurrently.

2. Aggrieved, he proffered an appeal to the High Court. HCCRA No. 760 of 2013. It is not clear what became of the appeal, but, through his submissions he urges that he was satisfied with the conviction, but, calls upon this court to unsettle the Sentence. The basis of the argument is that he has been ailing for the last 10 years with broken limbs, he is 61 years old, he faces enormous hardship in prison and has terminal illnesses and being in prison he faces serious challenges, including lack of good nutrition. Therefore, he seeks review of sentence downwards and/or release altogether.

3. The State/Respondent was granted the opportunity of filing submissions in response which were not forthcoming.

4. I have considered averments put forth by the Applicant. The Court of Appeal in Bernard Kimani Gacheru vs. Republic [2002] eKLR stated as follows:“It is now settled law, following several authorities by this Court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal, the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor, or took into account some wrong material, or acted on a wrong principle. Even if, the Appellate Court feels that the sentence is heavy and that the Appellate Court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already states is shown to exist.”

5. In Shadrack Kipchoge Kogo vs. Republic Eldoret Criminal Appeal No. 253 of 2003 the delivered itself that;“Sentence is essentially an exercise of the trial court and for this court to interfere, it must be shown that in passing the sentence, the court took into account an irrelevant factor or that a wrong principle was applied or short of those the sentence was so harsh and excessive that an error in principle must be inferred.”

6. Section 296(2) of the Penal Code provides that:…Any person who commits the felony of robbery is liable to imprisonment for fourteen years.(2)If the offender is armed with any dangerous or offensive weapon or instrument, or is in company with one or more other person or persons, or if, at or immediately before or immediately after the time of the robbery, he wounds, beats, strikes or uses any other personal violence to any person, he shall be sentenced to death.297. Attempted robbery(2)If the offender is armed with any dangerous or offensive weapon or instrument, or is in company with one or more other person or persons, or if, at or immediately before or immediately after the time of the assault, he wounds, beats, strikes or uses any other personal violence to any person, he shall be sentenced to death...

7. It is apparent that the trial magistrate did not adhere to laid down provisions of the law. Additionally, in Republic v Mwangi & Others Petition No. E018 of 2023 (2024) KESC 34(KLR) the Supreme Court stated that the decision of Muruatetu which declared the death penalty provided for murder unconstitutional, didn’t invalidate mandatory sentence, minimum sentence in the Penal Code, the Sexual Offences Act or in any other statutes.

8. If indeed, the Applicant is ailing as alleged, he may petition the president through the Advisory Committee on the Power of Mercy for free or conditional liberty.

9. From the foregoing the application by the Applicant is without merit. Accordingly, it is dismissed.

10. It is so ordered.

DATED, SIGNED AND DELIVERED VIRTUALLY THIS 27TH DAY OF MARCH, 2025. ..................................L.N. MUTENDEJUDGE