[2020] KEHC 7755 (KLR)
The court found that the mandatory death sentence imposed on the applicant for robbery with violence was unconstitutional following the Supreme Court's decision in Francis Muruatetu. The applicant demonstrated remorse, rehabilitation, and acceptance of responsibility, supported by evidence of personal development...
Source-derived case information.
- Citation
- [2020] KEHC 7755 (KLR)
- Parties
- Applicant: Patrick Omondi Opondo; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Constitutional Petition 3 of 2020
- Procedural Posture
- Constitutional Criminal Petition / Judgment on Resentencing Application
- Outcome
- petition for resentencing allowed; mandatory death sentence vacated and substituted with ten years imprisonment from date of conviction
- Judges
- RE Aburili
- Legal Topics
- Resentencing, Mandatory Sentences, Robbery With Violence, Mitigation, Rehabilitation, Supreme Court Precedent
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Patrick Omondi Opondo
Applicant
Republic
Respondent
Procedural Posture
Constitutional Criminal Petition / Judgment on Resentencing Application
Legal Issues
- 1 Whether the mandatory death sentence for robbery with violence is unconstitutional following the Francis Muruatetu decision.
- 2 Whether the applicant is entitled to resentencing based on demonstrated remorse and rehabilitation.
- 3 What is the appropriate sentence in light of the circumstances of the offence and the applicant's mitigation.
Ratio Decidendi
The court found that the mandatory death sentence imposed on the applicant for robbery with violence was unconstitutional following the Supreme Court's decision in Francis Muruatetu. The applicant demonstrated remorse, rehabilitation, and acceptance of responsibility, supported by evidence of personal development while in prison. The offence, though serious, did not result in grave injuries and the weapons used were not lethal. The court determined that the applicant deserved a second chance and that a custodial sentence of ten years, calculated from the date of conviction, was appropriate in the circumstances. The mandatory death sentence, as commuted to life imprisonment, was therefore...
Court Disposition
petition for resentencing allowed; mandatory death sentence vacated and substituted with ten years imprisonment from date of conviction
Orders
- The mandatory death sentence as commuted to life imprisonment is vacated.
- The applicant is sentenced to ten years imprisonment to be calculated from 19 December 2012.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT SIAYA
CONSTITUTIONAL CRIMINAL PETITION NO. 3 OF 2020
(CORAM: R. E. ABURILI - J.)
PATRICK OMONDI OPONDO………….………………………..APPLICANT
VERSUS
REPUBLIC………………………………………….…………... RESPONDENT
(Being an Application for Revision of Sentence and Conviction in Kisumu HCRA 134/2012 and Originally from SPM’s court, Siaya vide Criminal Case No. 525 of 2011 before Hon. R.B. Ngetich)
JUDGMENT
1. The Petitioner was convicted of the offence of robbery with violence and sentenced to suffer death by Hon. R.B. Ngetich SPM (as she then was on 19/12/2012 vide Siaya PM Cr. Case No. 525/2011.
2. He appealed to the High Court at Kisumu vide HCRA 134/2012 which appeal was dismissed and he appealed further to the Court of Appeal vide CA CRA NO.10/2014 which appeal was dismissed on 27/5/2016.
3. The Petitioner seeks for resentencing vide this Petition pursuant to the Francis Muruatetu decision SC Pet. Nos. 15 & 16 of 2015(consolidated) as he was handed maximum mandatory death penalty which the Supreme Court in the above case declared unconstitutional. The death penalty was later commuted to life imprisonment by His Excellency the President.
4. The Petitioner submits that he regrets the offence, prays for leniency and that he has reformed. Certificates shown to the court show that he was trained in Theology at Discovery Bible School and has a certificate in Health Education and counselling having trained in Mind Education Training. He has served about 10 years in prison.
5. The State acknowledges that the Petitioner has reformed and that he can be given an opportunity to serve custodial sentence but that the offence is heinous requiring deterrent sentence.
6. I have considered the Petition, submissions, testimonials and response by the State. I have also considered circumstances under which the offence was committed, the value of the property stolen and the nature of injuries sustained by the complainant. I have given equal consideration to the mitigation by the Petitioner.
7. The offence of robbery with violence is prompted by greed, reaping where one has not sown and in the process threatening life and limb. It is a heinous crime.
8. However, the Petitioner has shown remorse and reform. He is rehabilitated through life’s skills learnt in prison as shown by certificates filed in court.
9. The complainant did not sustain serious injuries. The injuries were classified as harm and the weapon used in the robbery were not as lethal. They used clubs and rungus to assault and threaten the complainants. I am in the circumstances satisfied that the Petitioner who readily accepts his mistakes and admits the offence and promises not to reoffend, deserves a chance back into the society.
10. Accordingly, I allow the Petition for resentencing and vacate the mandatory death sentence as commuted to life imprisonment and substitute it with a prison term of ten years to be calculated from the date of his conviction and sentence on 19. 12. 2012.
11. Orders accordingly.
Dated, signed and delivered at Siaya, this 27th day of January, 2020.
R.E. ABURILI
JUDGE
In the presence of:
Patrick Omondi Opondo, Petitioner in person
Mr. Okachi, Senior Principal Prosecution Counsel
Court Assistants: Brenda Achieng and Modestar Mutiemani