[2022] KEHC 11703 (KLR)

Mokoa v Republic (Criminal Petition E027 of 2020) [2022] KEHC 11703 (KLR) (16 May 2022) (Judgment)

Neutral citation: [2022] KEHC 11703 (KLR)

Republic of Kenya

In the High Court at Kisumu

Criminal Petition E027 of 2020

JN Kamau, J

May 16, 2022

Between

Vincent Mokoa

Petitioner

and

Republic

Respondent

Judgment

Introduction 1. The Petitioner herein was tried and convicted for the offence of robbery with violence contrary to Section 296 (2) of the Penal Code. He was sentenced to life imprisonment.

2. Being dissatisfied with the said decision, he lodged an appeal in the High Court HCCRA No 121 of 2015, which was dismissed in its entirety and his conviction and sentence upheld. He submitted that he had appealed to the Court of Appeal but the same was not forthcoming (sic).

3. On 17th December 2020, he filed this Petition for review of the sentence pursuant to the decision of the Supreme Court Petition No 15 of 2015. In his Affidavit in support of his application, he stated that this court had jurisdiction to determine and impose an appropriate sentence by virtue of the case ofFrancis Karioko Muruatetu & Another vs Republic [2017] eKLR.

4. In his Written Submissions that were filed on 22nd November 2021, he submitted that he was not challenging conviction but his death sentence which was later commuted to life imprisonment. In this regard, he placed reliance on the case of John Kathia M’itobi vs Republic [2018] eKLR where the court therein resentenced the Petitioner to fifteen (15) years imprisonment commencing from the date of sentencing before the Trial Court.

5. He contended that he was arrested in the year 2013 and had spent over eight (8) years in custody. He added that he had lived peacefully with fellow inmates and prison authority. He was emphatic that for all those years he had been in custody, he had never been charged with any prison offence.

6. He averred that he was remorseful and had reformed while in prison. He pointed out that he did not injure the Complainant during the commission of the offence and the items he robbed the Complainant were of modest value. He promised not to indulge in any other crime in his lifetime if given a second chance to re-join the society.

7. He pointed out that he was a first offender and had been taking care of his young family before his incarceration and that the incident ruined his life and that of his family who had suffered because of his wrong doing.

8. He urged the court to consider the time he had spent in remand prior to conviction and sentence pursuant to Section 333(2) of the Criminal Procedure Code. In this regard, he placed reliance on the case of Moses Odongo Odinga vs Republic Petition No 4 of 2017 (eKLR citation not given) where the court while resentencing considered the time the petitioner had spent in remand during trial. He urged the court to allow his Petition, quash the death sentence and order for a lenient sentence.

9. On its part, the State opposed his Petition for the reason that the decision on constitutional validity of mandatory death sentence which was made in Francis Karioko Muruatetu & Another vs Republic (Supra) only related to murder cases. It was emphatic that the said decision did not invalidate the mandatory sentences or minimum sentences in the Penal Code, the Sexual Offences Actor any other statute.

10. It pointed out that the matter at hand was a robbery with violence which did not fall under the ambit of the case of Francis Karioko Muruatetu & Another vs Republic (Supra). It added that even if the Petitioner had not based his Petition on the aforesaid case, there was overwhelming evidence against him and that is why his Appeal was dismissed.

11. It was its contention that the Petitioner had not supplied this court with any document to show that he was remorseful in any way for his actions. It added that he did not attempt to give this court sufficient reasons as to his ability to benefit from a reduction of the sentence.

12. It urged the court to dismiss the Petition and uphold the conviction and sentence.

Legal Analysis 13. On 6th July 2021, the Supreme Court of Kenya gave guidelines in the case of Francis Karioko Muruatetu & Another vs Republic (Supra) to the effect that the said decision only applied in respect to sentences of murder under Sections 203 and 204 of the Penal Code and not applicable to capital offences such as treason under Section 40 (3), robbery with violence under Section 296 (2) and attempted robbery with violence under Section 297 (2) of the Penal Code.

14. Notably, the holding in the case of Francis Karioko Muruatetu & Another vs Republic (Supra) was inapplicable herein as the Petitioner had been charged and convicted of the offence of robbery with violence not murder as was emphasised by the Supreme Court in its aforesaid guidelines.

15. The fact that he was remorseful and the Officer-in-Charge of Shimo La Tewa Maximum Security Prison, Mombasa had recommended in his letter of 19th July 2021 that he be given assistance that might facilitate his early release to the society could not assist him for the reason that he had been charged and convicted of the offence of robbery with violence and not murder.

16. His prayer that the number of years he had spent in custody be considered by virtue of Section 333(2) of the Criminal Procedure Code Cap 75 (Laws of Kenya) was inapplicable in the circumstances as he had been sentenced to life imprisonment. Section 333(2) of the Criminal Procedure Code was in applicable because a life sentence is indeterminate.

Disposition 17. For the foregoing reasons, the upshot of this court’s decision was that the Petitioner’s Petition for review of sentence that was lodged on 17th December 2020 was not merited and the same be and is hereby dismissed.

18. It is so ordered.

DATED AND DELIVERED AT KISUMU THIS 16TH DAY OF MAY 2022J. KAMAUJUDGE