[2024] KEHC 10818 (KLR)
The court found that the mandatory life sentence imposed on the petitioner for robbery with violence is unconstitutional, following the Court of Appeal's decision in Julius Kitsao Manyeso v Republic. The Supreme Court's Muruatetu decision, while limited to murder cases, has influenced the broader jurisprudence on...
Source-derived case information.
- Citation
- [2024] KEHC 10818 (KLR)
- Parties
- Appellant: Victor Oduor Ouma; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Criminal Petition E001 of 2024
- Procedural Posture
- Criminal Petition / Ruling on Re Sentencing Application
- Outcome
- petition allowed in part; sentence varied
- Judges
- WM Musyoka
- Legal Topics
- Mandatory Sentencing, Resentencing, Robbery With Violence, Constitutionality of Sentences
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Victor Oduor Ouma
Appellant
Republic
Respondent
Procedural Posture
Criminal Petition / Ruling on Re Sentencing Application
Legal Issues
- 1 Whether the mandatory life sentence for robbery with violence is unconstitutional in light of recent jurisprudence.
- 2 Whether the petitioner is entitled to re-sentencing following the commutation of his death sentence to life imprisonment.
- 3 What is the appropriate substitute sentence for the petitioner given the evolving legal standards.
Ratio Decidendi
The court found that the mandatory life sentence imposed on the petitioner for robbery with violence is unconstitutional, following the Court of Appeal's decision in Julius Kitsao Manyeso v Republic. The Supreme Court's Muruatetu decision, while limited to murder cases, has influenced the broader jurisprudence on mandatory sentencing. The court held that the sentence of life imprisonment is no longer tenable and must be set aside. Guided by the Evans Nyamari Ayako decision, the court substituted the life sentence with a determinate term of 30 years' imprisonment, to be calculated from the date of the petitioner's arrest. The court declined to impose a non-custodial sentence due to the...
Court Disposition
petition allowed in part; sentence varied
Orders
- The sentence of life imprisonment imposed on the petitioner is set aside.
- The petitioner is sentenced to 30 years' imprisonment, to be calculated from the date of his arrest.
Full Case Text
Judgment text and source record
21 paragraphs
Ouma v Republic (Criminal Petition E001 of 2024) [2024] KEHC 10818 (KLR) (20 September 2024) (Ruling)
Neutral citation: [2024] KEHC 10818 (KLR)
Republic of Kenya
In the High Court at Busia
Criminal Petition E001 of 2024
WM Musyoka, J
September 20, 2024
Between
Victor Oduor Ouma
Petitioner
and
Republic
Respondent
Ruling
1. The petition, dated 27th November 2023, principally seeks re-sentencing. The applicant had been convicted, in Busia CMCCRC No. 2415 of 2006, of robbery with violence, contrary to section 295, as read with section 296(2), of the Penal Code, Cap 63, Laws of Kenya, which attracts, upon conviction, the death penalty, and the trial court had imposed that sentence. He filed an appeal, in Busia HCCRA No. 41 of 2009, which was dismissed, but the death sentence was commuted to life imprisonment.
2. The petition, no doubt, rides on the decision in Francis Karioko Muruatetu & another vs. Republic [2017] eKLR (Maraga CJ&P, Mwilu DCJ&VP, Ojwang, Wanjala, Njoki & Lenaola, SCJJ), where the court appeared to lay down a general principle, that all mandatory sentences were unconstitutional, and to allow trial and appellate courts discretion to re-visit cases where mandatory sentences had been imposed, with a view to revising or reviewing them. The Supreme Court re-visited the issue, in Francis Karioko Muruatetu & another vs. Republic; Katiba Institute & 5 others (Amicus Curiae) [2021] eKLR (Koome CJ&P, Mwilu DCJ&VP, Ibrahim, Wanjala, Njoki, Lenaola & Ouko, SCJJ), and clarified that its decision, in Francis Karioko Muruatetu & another vs. Republic [2017] eKLR (Maraga CJ&P, Mwilu DCJ&VP, Ojwang, Wanjala, Njoki & Lenaola, SCJJ), was of application only in murder cases.
3. The current jurisprudence points to entertainment and tolerance of applications for review of sentence, where the trial court imposed a mandatory sentence, in circumstances where the law did not allow any discretion. The trend is, no doubt, in line with the very progressive provisions of the Constitution of Kenya of 2010. The offence, that the petitioner was convicted in respect of, attracts a mandatory sentence. The principle laid out in Francis Karioko Muruatetu & another vs. Republic [2017] eKLR (Maraga CJ&P, Mwilu DCJ&VP, Ojwang, Wanjala, Njoki & Lenaola, SCJJ), declaring mandatory sentences unconstitutional, was boosted by that of the Court of Appeal, in Julius Kitsao Manyeso vs. Republic Malindi CACRA No. 12 of 2021 (Nyamweya, Lesiit & Odunga, JJA), with respect to the unconstitutionality of the life sentence. Recently it was held, in Evans Nyamari Ayako vs. Republic Kisumu CACRA No. 22 of 2018 (Okwengu, Omondi & J. Ngugi, JJA)(unreported), that life imprisonment translated to 30 years.
4. The petition appears to be informed by Julius Kitsao Manyeso vs. Republic Malindi CACRA No. 12 of 2021 (Nyamweya, Lesiit & Odunga, JJA), now that his death sentence was commuted to life imprisonment. As sentences of life imprisonment have been pronounced unjust and unconstitutional, then it stands that the sentence imposed on the petitioner herein is no longer tenable. I hereby set it aside. I shall proceed to consider the appropriate substitute sentence, guided by Evans Nyamari Ayako vs. Republic Kisumu CACRA No. 22 of 2018 (Okwengu, Omondi & J. Ngugi, JJA)(unreported).
5. The petitioner was convicted of robbery with violence, which is a heinous crime. He and his accomplice were dressed in what appeared to be police uniform, and posed as police officers, to enable them gain access to the residences of their victims, which is a very dangerous trend, as it undermines security, and law and order..
6. Upon review of everything, I am not persuaded that the petitioner is deserving of a non-custodial measure. However, he is entitled to benefit from Evans Nyamari Ayako vs. Republic Kisumu CACRA No. 22 of 2018 (Okwengu, Omondi & J. Ngugi, JJA)(unreported). I shall, hereby, impose upon him an imprisonment sentence of 30 years, to be calculated from the date of his arrest. Orders accordingly.
RULING DELIVERED, DATED AND SIGNED IN OPEN COURT AT BUSIA ON THIS 20TH DAY OF SEPTEMBER 2024W MUSYOKAJUDGEMr. Arthur Etyang, Court Assistant.Mr. Victor Oduor Ouma, the petitioner, in person.AdvocatesMr. Onanda, instructed by the Director of Public Prosecutions, for the respondent.