[2018] KEHC 981 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISUMU

PETITION NO.63 OF 2018

CORAM: CHERERE- J.

BETWEEN

ROBERT ACHAPA OKELLO........................PETITIONER

AND

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

JUDGMENT

Introduction

1. ROBERT ACHAPA OKELLO, (hereinafter referred to as the petitioner) was convicted and sentenced to death for the offence of robbery with violence contrary to section 296(2) of the Penal Codein Kisumu Criminal Case No. 929 of 2004. Together with his co-accused persons, they lodged appeals Kisumu High Court Criminal Appeal No. 179, 108, 181 and 182 of 2005(consolidated) which were dismissed and the conviction and sentence were upheld. They subsequently appealed to the Court of Appeal in Kisumu Criminal Appeal No.304 of 2012. The Court of Appeal similarly upheld his conviction and sentence.

2. By a petition filed on 9th July, 2018, the petitioner has petitioned this court for resentencing.

3. Ms. Barasa, learned counsel for the state submitted that the petition was not opposed on the grounds that the value of the robbed property was Kshs. 97,000/-, no violence was used on the complainant and the petitioner was convicted on the basis of recent possession of some of the robbed property.

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 decision in Francis Karioki Muruatetu & Another v Republic & 5 others [2016] eKLR declaring the mandatory death sentence unconstitutional has necessitated resentencing of all persons previously sentenced to the mandatory death sentence. In the case of William Okungu Kittiny v RepublicKSM CA Criminal Appeal No. 56 of 2013 [2018] eKLR, the Court of Appeal applied the Muruatetu Case (Supra) mutatis mutandis to the provisions of section 296(2) of the Penal Code(Chapter 63 of the Laws of Kenya) which imposes the mandatory death penalty for the offence of robbery with violence and held that death was a discretionary maximum sentence.

6. In the case of Michael Kathewa Laichena & another v Republic [2018] eKLR, Majanja J, précised the procedure that a court considering resentencing should take and stated as follows:

“The Sentencing Policy Guidelines, 2016 (“the Guidelines”) published by the Kenya Judiciary provide a four tier methodology for determination of a custodial sentence. The starting point is establishing the custodial sentence under the applicable statute. Second, consider the mitigating circumstances or circumstances that would lessen the term of the custodial sentence. Third, aggravating circumstances that will go to increase the sentence. Fourth, weigh both aggravating and mitigating circumstances. Since the Guidelines did not take into account the fact that the death penalty would be declared unconstitutional, the Court in the Muruatetu Case (Supra, para. 71), considered that in re-sentencing in a case of murder, the following mitigating factors would be applicable;

(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.

7. The court further stated that the Guidelines do not replace judicial discretion but are intended to promote transparency, consistency and fairness in sentencing.

8. The maximum sentence for simple robbery is 14 years’ imprisonment. The mitigating circumstances in this case are that the petitioner could be considered a first offender. The facts from the record shows that the offence took place at night and the robbers although armed with pangas did not use actual violence on the complainant.

9. 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. The court record shows that the petitioner was arrested on 27. 2.04 and has remained in custody to date. He remained in custody for 1 ½ years during the trial and has been in custody for 13 years since conviction.

10. The use of guideline judgments of Superior Courts has also been underlined to ensure consistency and fairness. In the case of Wycliffe Wangusi Mafura v RepublicELD CA Criminal Appeal No. 22 of 2016 [2018] eKLR , the Court of Appeal imposed a sentence of 20 years where the appellant was involved in robbing an Mpesa shop with the use of a firearm with which he threatened the attendant but was caught before he inflicted any violence on her. Likewise, in Paul Ouma Otieno alias Collera and Another v RepublicKSM CA Criminal Appeal No. 616 of 2010 [2018] eKLR, the Court of Appeal sentenced the appellants to 20 years imprisonment where the robbery was aggravated by the use of a firearm.

11. After considering all the mitigating and aggravating factors, and the fact that the petitioner has been in custody for 14 ½ years, I re-sentence him to the period already served.

DATED AND SIGNED IN KISUMU THIS12th DAY OFNovember2018

T. W. CHERERE

JUDGE

Read in open court in the presence of-

Court Assistant- Felix

Petitioner-

For the State-