[2019] KEHC 680 (KLR)
The court found that the mandatory death sentence previously imposed on the petitioner for robbery with violence was unconstitutional following the Supreme Court's decision in Muruatetu. The court considered the Sentencing Policy Guidelines, the period already served by the petitioner, and the fact that he was a...
Source-derived case information.
- Citation
- [2019] KEHC 680 (KLR)
- Parties
- Appellant: Lawrence Ayub Maina alias Kiki; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Criminal Petition 31 of 2019
- Procedural Posture
- Criminal Petition / Resentencing After Conviction and Appeals Dismissed
- Outcome
- Petition for resentencing allowed. Death sentence set aside and substituted with 15 years' imprisonment from date of conviction.
- Judges
- TW Cherere
- Legal Topics
- Robbery With Violence, Mandatory Sentencing, Resentencing, Constitutional Rights, Sentencing Guidelines
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Lawrence Ayub Maina alias Kiki
Appellant
Republic
Respondent
Procedural Posture
Criminal Petition / Resentencing After Conviction and Appeals Dismissed
Legal Issues
- 1 Whether the mandatory death sentence for robbery with violence is unconstitutional following the Supreme Court decision in Muruatetu.
- 2 Whether the petitioner is entitled to resentencing in light of time already served and mitigating factors.
Ratio Decidendi
The court found that the mandatory death sentence previously imposed on the petitioner for robbery with violence was unconstitutional following the Supreme Court's decision in Muruatetu. The court considered the Sentencing Policy Guidelines, the period already served by the petitioner, and the fact that he was a first offender. The court also took into account the seriousness of the offence, including the use of violence and injury to the complainant, but balanced this against the petitioner's remorse and time served. Applying section 333(2) of the Criminal Procedure Code, the court determined that a sentence of 15 years' imprisonment from the date of conviction was appropriate,...
Court Disposition
Petition for resentencing allowed. Death sentence set aside and substituted with 15 years' imprisonment from date of conviction.
Orders
- The petitioner is re-sentenced to 15 years’ imprisonment from 13th April, 2006.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISUMU
(CORAM: CHERERE-J)
CRIMINAL PETITION NO. 31 OF 2019
BETWEEN
LAWRENCE AYUB MAINA alias Kiki...............................................PETITIONER
AND
REPUBLIC............................................................................................RESPONDENT
JUDGEMENT
Introduction
1. On 13th April, 2006, the trial court in KISUMU CRIMINAL CASE NO. 328 OF 2005, convicted and sentenced the Petitioner to death for the offence of robbery with violence contrary to section 296(2) of the Penal Code. Petitioner lodged an appeal KISUMU HIGH COURT CRIMINAL APPEAL NO. 45 of 2006which was dismissed by a judgment dated 23rd September, 2008. The Petitioner subsequently appealed to the Court of Appeal in KISUMU CRIMINAL APPEAL NO. 648 OF 2010 which similarly upheld his conviction and death sentence by a judgment dated 28th November, 2012.
2. The Petitioner has petitioned this court for resentencing. He expressed remorse and stated that he was arrested in 2006 at the age of27 years and had been in custody since then having served 13 years since conviction.
3. Ms. Gathu, Senior Prosecution Counsel for the state submitted that the offence was committed in a series of other robberies by the Appellant and others who would dress up as police officers and terrorize victims whom they would rob and assault using crude weapons such as pangas, rungus and metal bars. While appreciating that the petitioner was arrested at the age of 27 years, the state recommended that he be resentenced to 30 years.
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 Karioki Muruatetu & Another v Republic & 5 others [2016] eKLRdeclaring 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, 2016 and 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.
8. The complainant was robbed and he suffered cut wound on the upper lip.
9. Petitioner was a first offender. The court record shows that the petitioner has served 13 years and 8 months since the date of conviction.
He is re-sentenced to 15 years’ imprisonment from 13th April, 2006 when he was convicted.
DELIVERED AND SIGNED IN KISUMU THIS 18th DAY OF December 2019
T. W. CHERERE
JUDGE
In the presence of-
Court Assistant
- Amondi/Okodoi
Petitioner
- Present in person
For the State - Ms. Gathu