[2020] KEHC 998 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT ELDORET

MISC.CRIMINAL APPLICATION NO 154 OF 2018

RAPHAEL KOCHWA OKUYU..........................................APPLICANT

VERSUS

REPUBLIC......................................................................RESPONDENT

RULING

1. RAPHAEL KOCWA OKUYU alias MATHAYO (the applicant) was jointly charged with three others for the offence of robbery with violence contrary to section 296 (2) of the Penal Code in Kapsabet SPMCRC NO256 OF 2017. The particulars of the charge were that on 4th January 2007, while armed with guns, jointly robbed BENJAMIN BUSIENEI of cash Kshs.78,000/- and a mobile phone make Samsung, all to the total value of Kshs.96,000/-, and they shot and wounded the victim. Upon conviction, he was sentenced to death, and he thereafter unsuccessfully contested the outcome inHCCRA NO 61of 2018 where conviction was upheld, and the death sentence confirmed. He has now filed a notice of motion dated 1st November 2018, seeking re-hearing of the sentence imposed on him in the spirit of the Supreme Court decision in FRANCIS KARIOKO MURUATETU & ANOR V REPUBLIC [2017] eKLR.

2. The applicant made oral submissions in which he acknowledged that what he did was wrong, and regretted his conduct. He explained that for the period that he has been in incarceration, he has undergone religious training which he believes will help him to make a positive change to the community if the court reviews the death sentence and metes out a sentence which will eventually see him leaving the prison to join the free society.

3. The applicant urges this court to take into consideration the fact that before conclusion of his trial in the magistrate’s court, he spent 1 year and 8 months in remand custody, which period he urges this court to factor in when considering his prayer for resentencing. That he has been in prison for a total of 14 years and prays for a second chance, saying”:

“What I did marred relations with my mother who is now very elderly, I had chosen bad company, and I have seen and paid the price. I pray for mercy and urge the court to deem the period served as adequate punishment”

4. In response, Miss Okok urges this court to consider the circumstances under which the offence was committed, where the applicant had a home-made gun, and in a bid to make the complainant comply with their orders, he shot and wounded him in the hand and mouth- which injuries were classified as grievous harm. It is submitted that the manner in which the robbery was executed caused psychological trauma to the victim and the members of his family.

5. The DPP acknowledged that in mitigation, the applicant expressed remorse, and that he had spent 14 years in prison, but nonetheless urged for a custodial sentence, which would act as a deterrence.

6. The robbery took place in the complainant’s residence, and infact in a bid to save his life, the complainant gave out the money, yet he was still shot.

7. The emerging jurisprudence from the Supreme Court in the case of FRANCIS KARIOKO MURUATETU AND ANOR VERSUS REPUBLIC [2017] eKLR paved way for persons serving mandatory sentences to have their sentences reheard and imposed afresh as appropriate in each situation, and urges this court to reconsider the sentence. The petitioner has relied on several recent decisions which have re-visited the mandatory sentences imposed and in exercise of judicial discretion, substituted with lesser sentences.

8. The Supreme Court in the Francis Karioko Muruatetu (supra) decision gave the following guidelines when this court will be considering the Applicant’s application on re-sentencing:

“[71]. As a consequence of this decision, paragraph 6. 4-6. 7 of the guidelines are no longer applicable. To avoid a lacuna, the following guidelines with regard to mitigating factors are applicable in a re-hearing sentence for the conviction of a murder charge:

(a) age of the offender;

(b) being a first offender;

(c) whether the offender pleaded guilty;

(d) character and record of the offender;

(e) commission of the offence in response to gender-based violence;

(f) remorsefulness of the offender;

(g) the possibility of reform and social re-adaptation of the offender;

(h any other factor that the Court considers relevant.

[72] We wish to make it very clear that these guidelines in no way replace judicial discretion. They are advisory and not mandatory. They are geared to promoting consistency and transparency in sentencing hearings. They are also aimed at promoting public understanding of the sentencing process. This notwithstanding, we are obligated to point out here that paragraph 25 of the 2016 Judiciary Sentencing Policy Guidelines states that:

Where there are guideline judgments, that is, decisions from the superior courts on a sentencing principle, the subordinate courts are bound by it. It is the duty of the court to keep abreast with the guideline judgments pronounced. Equally, it is the duty of the prosecutor and defence counsel to inform the court of existing guideline judgments on an issue before it.”

9. But sentence is not all about the offender only, the rights and interest of the victim as well as the community must also be considered, as sentence is also for retribution and to act as a deterrence. I have also considered his being a first offender and the fact that the appellant took imprisonment positively and took advantage of opportunities available in prison to reform and gain skills which will help him impact on the society positively. I am of the view that the period of 14 years he has served in prison (which is inclusive the period spent in remand) is sufficient punishment and

I therefore reduce the appellant’s sentence to period already served.

Consequently, the prayer for review of sentence is hereby allowed and the sentence be and is hereby reduced to period already served. The applicant shall be set at liberty forthwith unless otherwise lawfully held.

E-delivered and dated this 9th day of December 2020 at Eldoret

H.A.OMONDI

JUDGE

Miss Okok for Prosecution

Applicant present in person