[2019] KEHC 11889 (KLR)
The court found that, following the Supreme Court decision in Muruatetu, the mandatory death sentence previously imposed on the petitioner for robbery with violence was unconstitutional. The court considered the gravity of the offence, which resulted in the death of four people, the use of dangerous weapons, and the...
Source-derived case information.
- Citation
- [2019] KEHC 11889 (KLR)
- Parties
- Appellant: Nixon Omondi Okoth; Respondent: Director of Public Prosecution
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Petition 6 of 2019
- Procedural Posture
- Constitutional Petition / Judgment
- Outcome
- petition partially allowed
- Judges
- DO Ogembo
- Legal Topics
- Resentencing, Mandatory Death Sentence, Robbery With Violence, Sentencing Guidelines, Rehabilitation, Supreme Court Precedent
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nixon Omondi Okoth
Appellant
Director of Public Prosecution
Respondent
Procedural Posture
Constitutional Petition / Judgment
Legal Issues
- 1 Whether the petitioner is entitled to resentencing following the Supreme Court decision in Francis Karioko Muruatetu v Republic.
- 2 What is the appropriate sentence for the petitioner given the circumstances of the offence and his period of incarceration.
Ratio Decidendi
The court found that, following the Supreme Court decision in Muruatetu, the mandatory death sentence previously imposed on the petitioner for robbery with violence was unconstitutional. The court considered the gravity of the offence, which resulted in the death of four people, the use of dangerous weapons, and the fact that the petitioner had served 23 years in prison. The court also took into account the petitioner's demonstrated reformation, good prison record, and the social report indicating he was not a risk to society. Balancing the seriousness of the crime with the petitioner's prospects for rehabilitation, the court determined that a sentence of 28 years' imprisonment,...
Court Disposition
petition partially allowed
Orders
- The petitioner is resentenced to twenty-eight (28) years imprisonment commencing from the date of his arrest.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MOMBASA
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO. 6 OF 2019
NIXON OMONDI OKOTH.........................................................PETITIONER
VERSUS
DIRECTOR OF PUBLIC PROSECUTION.............................RESPONDENT
JUDGMENT
1. The Petitioner herein seeks a resentencing pursuant to the Supreme Court decision in Francis Karioko Muruatetu vs. Republic [2017] eKLR.
2. The Petitioner was tried and convicted of robbery with violence in the Vihiga Chief Magistrate Court Criminal Case No. 388 of 1997. He was sentenced to a mandatory death sentence and has been in jail for 23 years. The Petitioner was involved in robbery with violence where he and his accomplices were armed with dangerous weapons. They broke into several shops in Vihiga and used the dangerous weapons they had to assault some of the complainants. The incident of the night of 17th February 1997 resulted to the loss of four lives (three watchmen and one taxi driver). The Petitioner was subsequently arrested with some of the stolen goods.
3. Mr. Fedha learned counsel for the prosecution submitted that the prosecution proved its case beyond reasonable doubt and that lives were lost during the said robbery. He calls for a deterrent sentence of 50 years including years the 23 years.
4. The Petitioner submits that he has served 23 years in jail and during the said years he has known God and what God wants him to do and once released he wishes to preach the gospel to the youth. He further submits that he never offended anyone at home and even within his county and he shall be given a second chance to rejoin the society.
5. I have carefully considered the issue at hand. The aim of punishment is Community Protection, Deterrence, Retribution, Restorative Justice, Rehabilitation and Reformation. The offence which was committed by the Petitioner is grave and should be properly punished. The Petitioner is now 44 years. He has a good record in prison and there is an indication that he has reformed.
6. The Social Report about him by the Senior Probation Officer dated 16th September 2019 indicates a person who may not be a risk to society. A robbery with violence is a serious offence and should be properly punished. In the case of the Petitioner four people died as a result of a robbery he was involved in and it was proved beyond reasonable doubt that he actual inflicted harm one a victim.
7. The Petitioner has served 23 years in prison. I have considered The Sentencing Policy Guidelines, 2016and its objectives to promote transparency, consistency and fairness in sentencing (See Michael Kathewa Laichena & another v Republic [2018] eKLR).
8. I have also considered that the robbers were armed with dangerous weapons and the robbery resulted to the death of four (4) innocent souls. I re-sentence the petitioner to twenty eight (28) years imprisonment commencing from the date of his arrest.
That is the Judgment of the Court.
Dated, Signed and Delivered at Mombasa this 4th day of November, 2019.
E. K. OGOLA
JUDGE
In the presence of:
Mr. Fedha for DPP
Petitioner in person
Mr. Kaunda Court Assistant