[2018] KEHC 909 (KLR)
The court found that although the petition was initially framed as seeking a retrial based on new and compelling evidence, the petitioner had shifted his request to a review of sentence in his submissions. The court noted that the petitioner and his accomplices were armed with a dangerous weapon, but no one was...
Source-derived case information.
- Citation
- [2018] KEHC 909 (KLR)
- Parties
- Appellant: Stephen Akhonya Musonye; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Petition 19 of 2016
- Procedural Posture
- Criminal Review / Ruling on Petition for Retrial And/or Sentence Review
- Outcome
- sentence reviewed and substituted
- Judges
- DN Musyoka
- Legal Topics
- Robbery With Violence, Sentence Review, New and Compelling Evidence, Retrial Principles
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Stephen Akhonya Musonye
Appellant
Republic
Respondent
Procedural Posture
Criminal Review / Ruling on Petition for Retrial And/or Sentence Review
Legal Issues
- 1 Whether the petitioner has established grounds for a retrial based on new and compelling evidence.
- 2 Whether the sentence of death should be reviewed in light of recent Supreme Court decisions.
Ratio Decidendi
The court found that although the petition was initially framed as seeking a retrial based on new and compelling evidence, the petitioner had shifted his request to a review of sentence in his submissions. The court noted that the petitioner and his accomplices were armed with a dangerous weapon, but no one was harmed during the incident. In light of the Supreme Court's decision declaring the mandatory death penalty unconstitutional, the court exercised its discretion to review the sentence. The death sentence imposed by the trial court was substituted with a term of thirty years' imprisonment, effective from the date of the original sentencing.
Court Disposition
sentence reviewed and substituted
Orders
- The death sentence imposed on the appellant in Kakamega CMCCRC No. 443 of 2005 is set aside.
- The appellant is sentenced to thirty (30) years imprisonment, to run from 28th June 2006.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KAKAMEGA
PETITION NO. 19 OF 2016
STEPHEN AKHONYA MUSONYE.......................PETITIONER
VERSUS
REPUBLIC..............................................................RESPONDENT
RULING
1. The petitioner herein had been convicted in Kakamega CMCCRC No. 443 of 2005 of robbery with violence and was sentenced to death. His appeals to the High Court and the Court of Appeal in Kakamega HCCRA No. 79 of 2006 and Kisumu CACRA No. 120 of 2010 were dismissed.
2. He has now come back to court asking for the court to order a retrial founded on what he calls new compelling evidence that he could not obtain with reasonable diligence as at the time of trial, which evidence he believes would have changed the course of the matter and the outcome of the proceedings.
3. I have perused through the affidavit sworn in support of the petition. He argues that he was not at the scene of the crime the subject of the proceedings. He says he was elsewhere with other persons that he has named. He has gone further to attach copies of witness statements signed by the said persons.
4. Directions were given for disposal of the petition by way of written submissions. The petitioner did file his written submissions, but the Republic did not. I have read through the submissions by the petitioner, he generally pitches for a review of his sentence.
5. When the matter came up for hearing on 2nd November 2018, the Republic, through Mr. Juma, indicated that what the petitioner was seeking was review of sentence, and the Republic had no objection to the review, only asking the court to take the aggravating circumstances of the offence into account.
6. The petition is expressed as seeking a retrial on reasons advanced in the body of the petition, but the petitioner appears to have abandoned that approach in his written submissions and veered towards a review of his sentence.
7. I have carefully perused through the records in both Kakamega CMCCRC No. 443 of 2005, Kakamega HCCRA No. 79 of 2006 and Kisumu CACRA No. 120 of 2010. I have noted that the appellant and his colleagues were armed with a dangerous weapon. No one appears to have been harmed though in the incident.
8. In view of the recent decision of the Supreme Court, I hereby review the sentence that was pronounced against the appellant by the trial court in Kakamega CMCCRC No. 443 of 2005, the death penalty, and I do hereby substitute the said sentence with a sentence of thirty (30) years imprisonment. The said sentence shall count from the 28th June 2006.
DATED, SIGNED and DELIVERED at KAKAMEGA this 3RD DAY OF DECEMBER., 2018
W. MUSYOKA
JUDGE