[2020] KEHC 7499 (KLR)
The court held that, following the Supreme Court's decision in Muruatetu and subsequent Court of Appeal decisions, the mandatory death sentence for robbery with violence is unconstitutional. The court must therefore consider appropriate sentencing based on the circumstances of the offence and the mitigating factors...
Source-derived case information.
- Citation
- [2020] KEHC 7499 (KLR)
- Parties
- Appellant: Lowayakaru Ejuroto Elimelim; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Criminal Petition 100 of 2018
- Procedural Posture
- Criminal Petition / Resentencing After Conviction and Exhaustion of Appeals
- Outcome
- petition allowed in part; death sentence set aside; petitioner resentenced to 25 years' imprisonment from date of conviction
- Judges
- HK Chemitei
- Legal Topics
- Resentencing, Mandatory Sentences, Robbery With Violence, Mitigating Factors, Supreme Court Guidelines
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Lowayakaru Ejuroto Elimelim
Appellant
Republic
Respondent
Procedural Posture
Criminal Petition / Resentencing After Conviction and Exhaustion of Appeals
Legal Issues
- 1 Whether the mandatory death sentence for robbery with violence under Section 296(2) of the Penal Code remains constitutional 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 and the mitigating factors.
Ratio Decidendi
The court held that, following the Supreme Court's decision in Muruatetu and subsequent Court of Appeal decisions, the mandatory death sentence for robbery with violence is unconstitutional. The court must therefore consider appropriate sentencing based on the circumstances of the offence and the mitigating factors presented. In this case, although the petitioner demonstrated some reform and rehabilitation, the offence was aggravated by the use of a firearm and resulted in the death of the victim. The period already served was deemed insufficient for the gravity of the offence. Consequently, the court resentenced the petitioner to twenty-five years' imprisonment from the date of...
Court Disposition
petition allowed in part; death sentence set aside; petitioner resentenced to 25 years' imprisonment from date of conviction
Orders
- The death sentence imposed on the petitioner is set aside.
- The petitioner is resentenced to twenty-five (25) years' imprisonment from 16/11/2004.
Full Case Text
Judgment text and source record
41 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KITALE
CRIMINAL PETITION NO. 100 OF 2018
LOWAYAKARU EJUROTO ELIMELIM............................PETITIONER
AND
REPUBLIC............................................................................RESPONDENT
RULING
1. The Petitioner herein was convicted and sentenced to death for the offence of robbery with violence contrary to Section 296(2) of the Penal Code in Kitale Criminal Case No. 4918 of 2002 on 16/11/2004. His first appeal to the High Court, Kitale Criminal Appeal No. 71 of 2004was dismissed. He then preferred a second appeal in Eldoret Criminal Appeal No. 219 of 2006and the same was dismissed on 11/04/2008.
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 sentence imposed on him be set aside and that this court to imposes an appropriate sentence.
3. The petitioner attached certificates to this petition in a bid to demonstrate that he has reformed somewhat and has underwent various rehabilitative programmes while in incarceration.
4. 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.
5. I have 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.
6. In determining this Petition, I have had alook at judgments of Superior Courts in offences of this nature which were delivered after the Muruatetu’s case in order 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.
7. 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.
8. I have considered the stated principles of sentencing and the above cited authorities. I have considered the circumstances in which the offence was committed in that the offence in this case was aggravated by the use of a firearm where the deceased was murdered in the process.
9. In my view, I do not think that the period he has served in prison is sufficient for the serious offence committed by the petitioner. I hereby re sentence him to Twenty five (25) years’ imprisonment from the date he was convicted by the trial court, that is 16/11/2004.
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