[2019] KEHC 8216 (KLR)
The court found that the mandatory death sentence imposed on the appellant for the offence of robbery with violence was unconstitutional, following the Supreme Court's decision in Muruatetu and the Court of Appeal's application of the same principle to section 296(2) of the Penal Code. Consequently, the court...
Source-derived case information.
- Citation
- [2019] KEHC 8216 (KLR)
- Parties
- Appellant: Thomas Wekesa Nyongesa; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 56 of 2017
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- sentence varied
- Judges
- DAS Majanja
- Legal Topics
- Robbery With Violence, Sentencing, Constitutionality of Mandatory Sentences
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Thomas Wekesa Nyongesa
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the mandatory death sentence for robbery with violence under section 296(2) of the Penal Code is constitutional.
- 2 Whether the appellant's sentence should be substituted in light of recent Supreme Court and Court of Appeal decisions.
Ratio Decidendi
The court found that the mandatory death sentence imposed on the appellant for the offence of robbery with violence was unconstitutional, following the Supreme Court's decision in Muruatetu and the Court of Appeal's application of the same principle to section 296(2) of the Penal Code. Consequently, the court exercised its discretion to substitute the death sentence with a term of twelve years' imprisonment, taking into account the circumstances of the offence and the period already served by the appellant.
Court Disposition
sentence varied
Orders
- The sentence of death imposed on the appellant is quashed.
- The appellant is sentenced to twelve (12) years imprisonment from 30th September, 2012.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT ELDORET
CORAM: D.S. MAJANJA J.
CRIMINAL APPEAL NO. 56 OF 2017
BETWEEN
THOMAS WEKESA NYONGESA.........................APPELLANT
AND
REPUBLIC.............................................................RESPONDENT
(Being an appeal from the original conviction and sentence of Hon. M. Wambani, CM dated 19th May 2017 at Eldoret Magistrate’s Court in Criminal Case No. 289 of 2012)
JUDGMENT
1. The appellant, THOMAS WEKESA NYONGESA, was charged, convicted and sentenced to death for the offence of robbery with violence contrary to section 296 (2)of the Penal Code (Chapter 63 of the Laws of Kenya). The particulars of the charge were that on 17th January 2012 at Langas Estate in Wareng District within Rift Valley Province jointly with others not before the court being armed with an offensive weapon namely a hammer, he robbed PAUL NJUGUNA NJOGU of his motorcycle make KING BIRD registration number KMCT 776F, red in colour valued at Kshs. 83,000/- and immediately before such robbery wounded the said PAUL NJUGUNA NJOGU.
2. At the hearing of this appeal, the appellant abandoned the appeal on conviction and submitted that he was only contesting the sentence of death imposed on him. I have considered the circumstances of the offences noting that the mandatory death sentence was found unconstitutional by the Supreme Court inFrancis Karioko Muruatetu & Another v Republic SCK Pet. No. 15 OF 2015 [2017] eKLR.The same principle was applied to the offence of robbery with violence under section 296(2) of the Penal Code by the Court of Appeal in William Okungu Kittiny v Republic KSM CA Criminal Appeal No. 56 of 2013 [2018] eKLR.
3. I quash the sentence of death imposed on the appellant and substitute the same with twelve(12) years imprisonment from 30th September, 2012.
DATED and DELIVERED at ELDORET this 24th day of April 2019.
D.S. MAJANJA
JUDGE
Appellant in person.
Ms Mumu, Prosecution Counsel, instructed by the Office of Director of Public Prosecutions for the respondent.