[2019] KEHC 802 (KLR)
The court found that, following the Supreme Court's decision in Muruatetu, the mandatory death sentence for robbery with violence is unconstitutional and that resentencing is required. In determining the appropriate sentence, the court considered the seriousness of the offence, the fact that the complainant was...
Source-derived case information.
- Citation
- [2019] KEHC 802 (KLR)
- Parties
- Appellant: Patrick Mmachi Tete alias Odaba; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Criminal Petition 60 of 2019
- Procedural Posture
- Criminal Petition / Resentencing After Conviction and Appeals Exhausted
- Outcome
- petition for resentencing allowed; sentence substituted
- Judges
- TW Cherere
- Legal Topics
- Robbery With Violence, Mandatory Sentencing, Resentencing, Constitutional Rights, Sentencing Guidelines
- 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
Patrick Mmachi Tete alias Odaba
Appellant
Republic
Respondent
Procedural Posture
Criminal Petition / Resentencing After Conviction and Appeals Exhausted
Legal Issues
- 1 Whether the mandatory death sentence for robbery with violence is unconstitutional following the Supreme Court decision in Muruatetu.
- 2 Whether the petitioner is entitled to resentencing in light of time served and rehabilitation.
- 3 What is the appropriate sentence considering the circumstances of the offence and the petitioner.
Ratio Decidendi
The court found that, following the Supreme Court's decision in Muruatetu, the mandatory death sentence for robbery with violence is unconstitutional and that resentencing is required. In determining the appropriate sentence, the court considered the seriousness of the offence, the fact that the complainant was wounded, the petitioner's remorse, rehabilitation efforts, good conduct in prison, and the period already served in custody. The court also took into account that the petitioner was a first offender and had served over 14 years since conviction. Applying the Sentencing Policy Guidelines and section 333(2) of the Criminal Procedure Code, the court determined that a sentence of 15...
Court Disposition
petition for resentencing allowed; sentence substituted
Orders
- The petitioner is re-sentenced to 15 years’ imprisonment from 11th May, 2005, the date of conviction.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KISUMU
(CORAM: CHERERE-J)
CRIMINAL PETITION NO. 60 OF 2019
BETWEEN
PATRICK MMACHI TETE alias ODABA...............................................PETITIONER
AND
REPUBLIC..................................................................................................RESPONDENT
JUDGEMENT
Introduction
1. On 11th May, 2005, the trial court in KISUMU CRIMINAL CASE NO.815 OF 2004, convicted and sentenced the Petitioner to death for the offence of robbery with violence contrary to section 296(2) of the Penal Code. Petitioner lodged an appeal KISUMU HIGH COURT CRIMINAL APPEAL NO. 104 of 2005which was dismissed by a judgment dated 13th May, 2008. The Petitioner subsequently appealed to the Court of Appeal in KISUMU CRIMINAL APPEAL NO. 284 OF 2009 which similarly upheld his conviction and death sentence by a judgment dated 17th December, 2010.
2. The Petitioner has petitioned this court for resentencing. He expressed remorse and stated that he was arrested on 01st August, 2004 and has been in custody since then.
3. Ms. Gathu, Senior Prosecution Counsel for the state submitted that the offence was heinous and complainant was wounded during the robbery and recommended that Petitioner be resentenced to 20 years.
Analysis and Determination
4. At the time of the petitioner’s conviction, death was the only available sentence for robbery with violence.
5. The Supreme Court’s decision in Francis Karioki Muruatetu & Another v Republic & 5 others [2016] eKLRdeclaring the mandatory death sentence unconstitutional has necessitated resentencing of all persons previously sentenced to the mandatory death sentence.
6. I have considered The Sentencing Policy Guidelines, 2016 and its application which is intended to promote transparency, consistency and fairness in sentencing (See Michael Kathewa Laichena & another v Republic [2018] eKLR).
7. Under the proviso to section 333(2) of the Criminal Procedure Code (Chapter 75 of the Laws of Kenya), the court is entitled to take into account the period the petitioner has spent in custody in determining the sentence.
8. The complainant was robbed and wounded. The Petitioner hastrained and achieved Grade 1 in carpentry and joinery as a means of rehabilitation. The officer in charge Naivasha Maximum Prison by his letter dated 10th June, 2019 filed on 04th December, 2019 has vouched for the Petitioner’s good conduct.
9. Petitioner was a first offender. The court record shows that the petitioner has served 14 years and 7 months since the date of conviction.
He is re-sentenced to 15 years’ imprisonment from 11th May, 2005 when he was convicted.
DELIVERED AND SIGNED IN KISUMU THIS 18THDAY OF DECEMBER 2019
T. W. CHERERE
JUDGE
In the presence of-
Court Assistant- Amondi/Okodoi
Petitioner - Present in person
For the State - Ms. Gathu