[2019] KEHC 997 (KLR)
The court held that, following the Supreme Court's decision in Muruatetu, the mandatory death sentence for robbery with violence is unconstitutional, and the court has discretion to resentence the petitioners. The court considered the aggravating circumstance that a person lost his life during the robbery, as well...
Source-derived case information.
- Citation
- [2019] KEHC 997 (KLR)
- Parties
- Appellant: Ronald Ngare Omuliga; Appellant: George Morara Kibanga; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Constitutional Petition 1 of 2019
- Procedural Posture
- Constitutional Petition / Judgment
- Outcome
- petition allowed in part; petitioners resentenced
- Judges
- REA Ougo
- Legal Topics
- Resentencing, Robbery With Violence, Mandatory Sentences, Mitigation, Rehabilitation, Supreme Court Precedent
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ronald Ngare Omuliga
Appellant
George Morara Kibanga
Appellant
Republic
Respondent
Procedural Posture
Constitutional Petition / Judgment
Legal Issues
- 1 Whether the petitioners are entitled to resentencing following the Supreme Court decision in Francis Kariuki Muruatetu & Another v Republic.
- 2 What is the appropriate sentence for the petitioners given the circumstances of the offence and their mitigation.
Ratio Decidendi
The court held that, following the Supreme Court's decision in Muruatetu, the mandatory death sentence for robbery with violence is unconstitutional, and the court has discretion to resentence the petitioners. The court considered the aggravating circumstance that a person lost his life during the robbery, as well as the mitigating factors that the petitioners had been in custody for 11 years, had shown remorse, and had engaged in rehabilitation activities. Balancing these factors, the court found that a sentence of 25 years imprisonment for each petitioner was appropriate, with the sentence to run from the date of the original sentencing in 2008.
Court Disposition
petition allowed in part; petitioners resentenced
Orders
- Each petitioner, Ronald Ngare Omuliga and George Morara Kibanga, is sentenced to serve 25 years imprisonment.
- The sentence shall run from the date the petitioners were sentenced in 2008.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KISII
CONST. PETITION NO. 1 OF 2019
RONALD NGARE OMULIGA..................................................1ST PETITIONER
GEORGE MORARA KIBANGA.............................................2ND PETITIONER
-VERSUS-
REPUBLIC.......................................................................................RESPONDENT
JUDGMENT
1. Ronald Ngare Omuliga (1st Petitioner) and George Morara Kibanga(2nd Petitioner) each filed a petition seeking re-sentencing. They were charged with Robbery with violence contrary to section 296(2) of the Penal Code Cap 63 and were convicted and sentenced to death.
2. Their appeal from the decision of the trial court Nyamira CRC NO.49/2006was dismissed by the High Court in HCCRA NO.83/2008. Their appeal in Kisumu CRA App. No.24/ 2009 was also dismissed. The 1st and 2nd petitioner are now each serving life sentence.
3. In this petition they rely on the case of Francis Kariuki Miruatetu & Another (Supreme Court) Petition No.15/2015. That 1st and 2nd petitioner’s were sentenced in the year 2008. They were arraigned in court in 2005. They have been in jail for a period of 11 years. The 1st and 2nd petitioner mitigation in resentencing is that they have been rehabilitated and that they are remorseful. That they have been engaged in various activities whilst in prisons and have learnt trades that will assist them.
4. Mr. Otieno for the DPP did not oppose their application for resentencing but suggested that they be sentenced to 20 years. He also asked the court to note that an AP died during the robbery on the material day.
5. I have considered their petition of the 1st and 2nd petitioner and also the circumstances of the case that was before the trial court, I note that a person lost his life. They have been in custody for the last 11 years. Considering all the above I now resentence each petitioner, Ronald Ngare Omuliga and George Morara Kibanga to serve 25 years imprisonment. The sentence shall ran from the date the petitioners were sentenced in 2008.
Dated, signed and delivered at Kisiithis 6th day of November 2019.
R.E OUGO
JUDGE
In the presence of;
1st Petitioner In Person
2nd Petitioner In Person
Mr. Otieno Senior Prosecution Counsel office of the DPP
Ms. Rael Court Clerk