[2022] KEHC 10700 (KLR)
The court found that the petitioners failed to demonstrate that the death sentence was imposed solely because it was mandatory. While the Supreme Court in Muruatetu declared the mandatory nature of the death penalty unconstitutional, it did not outlaw the death penalty itself, which remains as a discretionary...
Source-derived case information.
- Citation
- [2022] KEHC 10700 (KLR)
- Parties
- Applicant: Erick Onyango; Applicant: Erick Onyango Otieno; Applicant: Stephen Omondi Ochieng; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Criminal Petition E025 of 2021
- Procedural Posture
- Criminal Petition / Judgment
- Outcome
- petition dismissed
- Judges
- FA Ochieng
- Legal Topics
- Robbery With Violence, Mandatory Sentencing, Death Penalty, Constitutional Rights, Sentence Review
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Erick Onyango
Applicant
Erick Onyango Otieno
Applicant
Stephen Omondi Ochieng
Applicant
Republic
Respondent
Procedural Posture
Criminal Petition / Judgment
Legal Issues
- 1 Whether the mandatory nature of the death sentence for robbery with violence is unconstitutional.
- 2 Whether the petitioners are entitled to sentence review based on constitutional grounds and Supreme Court precedent.
- 3 Whether Section 333(2) of the Criminal Procedure Code applies to reduce the sentence in this case.
Ratio Decidendi
The court found that the petitioners failed to demonstrate that the death sentence was imposed solely because it was mandatory. While the Supreme Court in Muruatetu declared the mandatory nature of the death penalty unconstitutional, it did not outlaw the death penalty itself, which remains as a discretionary maximum punishment. The court also held that Section 333(2) of the Criminal Procedure Code does not apply to the death sentence, as it is not a sentence of specific duration. Consequently, the petitioners were not entitled to a review or reduction of their sentences on the grounds advanced.
Court Disposition
petition dismissed
Orders
- The petition is rejected.
Full Case Text
Judgment text and source record
33 paragraphs
Onyango & 2 others v Republic (Criminal Petition E025 of 2021) [2022] KEHC 10700 (KLR) (7 June 2022) (Judgment)
Neutral citation: [2022] KEHC 10700 (KLR)
Republic of Kenya
In the High Court at Kisumu
Criminal Petition E025 of 2021
FA Ochieng, J
June 7, 2022
Between
Erick Onyango
1st Petitioner
Erick Onyango Otieno
2nd Petitioner
Stephen Omondi Ochieng
3rd Petitioner
and
Republic
Respondent
Judgment
The Petitioners herein are Erick Onyango, Erick Onyango Otieno, and Stephen Omondi Ochieng. 1. All the 3 Petitioners were convicted for the offence of Robbery with Violence contrary to Section 296 (2) of the Penal Code. They were then sentenced to suffer Death as by law prescribed.
2. They have now invoked the provisions of Articles 27 (1) and (2) of the Constitution, together with Article 50 (2) of the said Constitution.
3. Their quest is for the review of the sentence, because they believe that the mandatory nature of the Death Sentence was unconstitutional.
4. When canvassing the petition, the Petitioners also invoked the provisions of Section 333 (2)of the Criminal Procedure Code.
5. Although the Petitioners provided the Court with a copy of the proceedings before the trial Court, including the Judgment, I failed to trace the post-judgment proceedings. In particular, the notes made when the trial court was handing down the sentences, were not made available to this Court.
6. In the circumstances, I was unable to verify whether or not the Death Penalty was imposed solely because the trial court deemed it mandatory.
7. In the Supreme Court’s decision, in the case of Francis Karioko Muruatetuvs Republic 2017 eKLR, it was held that the mandatory nature of the death sentence, for the offence of murder, was unconstitutional.
8. The Court noted thus;“Where a court listens to mitigatingcircumstances but has nonetheless,to impose a set sentence, the sentenceimposed fails to conform to the tenetsof fair trial that accrue to accusedpersons under Article 25 of theConstitution; an absolute right.”
9. The Supreme Court decried the formal equal penalty for unequal wicked crimes and criminals, as the same was not in keeping with the tenets of fair trial.
10. Nonetheless, whilst the Court emphasized the need for a generous and purposive interpretation of constitutional provisions which protect human rights, it went on to make it clear that Article 26 (3) of the Constitution permits the deprivation of life within the confines of the law.
11. The Court said that whilst the mandatory nature of the Death Penalty was unconstitutional, the Court did not outlaw the death penalty; and that the said penalty would still be applicable as a discretionary maximum punishment.
12. Therefore, as the Petitioners failed to demonstrate to this Court that the sentence was imposed on the grounds that it was mandatory, I decline to so find.
13. As regards the applicability of Section 333 (2) of the Criminal Procedure Code, I do share the sentiments expressed by Ms M. Odumba, learned State Counsel. In effect, even though the Petitioners had each spent 1 year, 2 months and 4 days in custody during the trial, they cannot benefit from a reduction of the actual period to be spent in serving custodial sentence, because the sentence does not have any specific duration.
14. In the result, the Petition is rejected.
DATED, SIGNED and DELIVERED at KISUMUTHIS 7TH DAY OF JUNE 2022FRED A. OCHIENGJUDGE