[2021] KEHC 8821 (KLR)
The court found that there was no justification for the disparity in sentences between the petitioner and his co-accused, both convicted of the same offence of robbery with violence. Citing Marando vs. The Republic, the court held that unless there are good reasons such as differences in character or antecedents,...
Source-derived case information.
- Citation
- [2021] KEHC 8821 (KLR)
- Parties
- Appellant: Martin Mulei Mutua; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Petition 4 of 2020
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- sentence quashed and substituted; petitioner to be released unless otherwise lawfully held
- Judges
- GV Odunga
- Legal Topics
- Robbery With Violence, Sentencing Disparity, Resentencing, Penal Code Section 296 2
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Martin Mulei Mutua
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the disparity in sentences between the petitioner and his co-accused was justified.
- 2 Whether the petitioner is entitled to resentencing in light of the Supreme Court decision in Muruatetu & Others vs. Republic.
Ratio Decidendi
The court found that there was no justification for the disparity in sentences between the petitioner and his co-accused, both convicted of the same offence of robbery with violence. Citing Marando vs. The Republic, the court held that unless there are good reasons such as differences in character or antecedents, sentences should not differ for co-accused convicted of the same offence. The Supreme Court decision in Muruatetu & Others vs. Republic provided the basis for resentencing, and since the co-accused had already been resentenced to 20 years, the petitioner was entitled to similar treatment. As the petitioner had already served 20 years, the court quashed the original sentence and...
Court Disposition
sentence quashed and substituted; petitioner to be released unless otherwise lawfully held
Orders
- The sentence imposed upon the petitioner is quashed and substituted with a sentence of 20 years.
- Since the petitioner has already served 20 years, he is to be released forthwith unless otherwise lawfully held.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MACHAKOS
PETITION NO. 4 OF 2020
(Coram: Odunga, J)
MARTIN MULEI MUTUA.....................................................................APPELLANT
VERSUS
REPUBLIC...........................................................................................RESPONDENT
JUDGEMENT
1. The Petitioner herein, Martin Mulei Mutua, together with his two co-accused were charged before the Kangundo SPM’s Court in Criminal Case No. 264 of 2000 with Robbery with Violence, contrary to section 296(2) of the Penal Code, convicted and sentenced to death which was latter commuted to life imprisonment. The Petitioner was the 3rd accused while Maundu Peter Alias Kiseli and Mutuku Musyoki were the 1st and 2nd accused respectively. However, following the decision of the Supreme Court in Petition No. 15 of 2015 – Muruatetu & Others vs. Republic, the sentence against Mutuku Musyoki was quashed and a resentence ordered.
2. On 28th November, 2019, the trial court after conducting resentencing proceedings sentenced the said Mutuku Musyoki to serve 20 years but noted that since he had served 19 years in prison, he would only serve the remaining 1 year.
3. In Marando vs. The Republic [1980] KLR 114, Madan, LawandPotter, JJA held that:
“The appeal against sentence causes us much concern. When two or more people are convicted of the same offence, it is wrong in principle to impose different sentences except for good reason. For instance, one may have a bad record, but that is not the case here. The appellant is a first offender. The judge gave no reason for sentencing the appellant to four years, and his co-accused to one day’s imprisonment. The only difference we can see between the two cases is that it was the appellant who raised the hue and cry against the deceased. We do not think that he did so maliciously, but rather out of misplaced and misguided zeal. It was a foolish and unnecessary act on his part, but probably well intentioned, as he freely went to report what had happened to the police. In the words of Hilbery, J in R vs. Ball (1951) 35 Cr App Rep 164, 165:
‘The differentiation in treatment is justified if the court, in considering the public interest, has regard to the differences in the characters and antecedents of the two convicted men and discriminates between them because of those differences.’
We see no justification for the disparity in the sentences in this case. If the sentence passed on the appellant is allowed to stand, he will suffer a justifiable feeling that he has been a victim of injustice.”
4. Similarly, I find no justification in disparity in the sentences that the Petitioner herein and the said Mutuku Musyoki ought to serve.
5. Accordingly, I hereby quash the sentence imposed upon him and substitute therefor 20 years. Since he has already served the same, I direct that he be at liberty forthwith unless otherwise lawfully held.
6. It is so ordered.
Judgement read, signed and delivered in open Court at Machakos this 5th day of March, 2021.
G V ODUNGA
JUDGE
In the presence of:
The Petitioner Online
Mr Ngetich for the Respondent
CA Geoffrey