[2021] KEHC 4622 (KLR)
The court found that the mandatory nature of the death penalty for robbery with violence, as previously imposed on the petitioner, was unconstitutional following the Supreme Court's decision in Muruatetu. The trial court had erroneously believed it had no discretion to consider mitigation or the circumstances of the...
Source-derived case information.
- Citation
- [2021] KEHC 4622 (KLR)
- Parties
- Appellant: Titus Owino Otieno; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Criminal Petition 10 of 2020
- Procedural Posture
- Criminal Petition / Resentencing After Supreme Court Decision
- Outcome
- petition for resentencing allowed; death sentence set aside; petitioner resentenced to 30 years imprisonment less one year for time served
- Legal Topics
- Robbery With Violence, Mandatory Sentencing, Resentencing, Death Penalty, Mitigation, Supreme Court Precedent
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Titus Owino Otieno
Appellant
Republic
Respondent
Procedural Posture
Criminal Petition / Resentencing After Supreme Court Decision
Legal Issues
- 1 Whether the mandatory death sentence for robbery with violence is unconstitutional following the Supreme Court decision in Muruatetu.
- 2 Whether the petitioner is entitled to resentencing in light of the Supreme Court decision.
- 3 What is the appropriate sentence for the petitioner considering the circumstances and mitigation.
Ratio Decidendi
The court found that the mandatory nature of the death penalty for robbery with violence, as previously imposed on the petitioner, was unconstitutional following the Supreme Court's decision in Muruatetu. The trial court had erroneously believed it had no discretion to consider mitigation or the circumstances of the offence. Upon review, the High Court considered the violent nature of the robbery, the injuries inflicted on the complainant, the petitioner's lack of remorse, and the mitigation advanced. The court determined that a custodial sentence of 30 years' imprisonment, less one year already served in pre-sentence custody, was appropriate and just in the circumstances.
Court Disposition
petition for resentencing allowed; death sentence set aside; petitioner resentenced to 30 years imprisonment less one year for time served
Orders
- The death sentence previously imposed on the petitioner is set aside.
- The petitioner is resentenced to 30 years imprisonment.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KISUMU
CRIMINAL PETITION NO. 10 OF 2020
TITUS OWINO OTIENO ............................................. PETITIONER
-VERSUS-
REPUBLIC...................................................................RESPONDENT
RULING
The Petitioner, TITUS OWINO OTIENOwas convicted for the offence of Robbery with Violencecontrary to Section 296 (2)of the Penal Code. He was then sentenced to suffer death as by law prescribed.
1. His appeal to the High Court was dismissed on 13th July 2010.
2. The Petitioner informed this Court that his appeal to the Court of Appeal was also dismissed.
3. He has now invoked the decision by the Supreme Court in the case of FRANCIS KARIOKO MURUATETU & ANOTHER Vs REPUBLIC PETITION NO. 15 OF 2015, and has asked the court to proceed to re-sentence him.
4. The Supreme Court declared the mandatory nature of the death penalty, to be unconstitutional.
5. I have perused the record of the proceedings before the trial court, and noted that after giving to the Petitoner an opportunity for mitigation, the learned trial magistrate said;
“Noted. Accused is a first offender and says as such. However, the offencecarries a mandatory sence of death,which ties my hands.
Sentence
Death.”
6. In a nutshell, the trial court believed that regardless of the circumstances in which the particular offence was committed, and notwithstanding the Petitioner’s mitigation, the death sentence was mandatory.
7. It is that notion of a mandatory sentence that the Supreme Court had declared unconstitutional. It therefore follows that the Petitioner was now entitled to being re-sentenced.
8. I have noted that the Complainant was violently robbed of his bicycle. He was hit on the back of his head, whilst he was riding his bicycle.
9. The blow was so massive that the Complainant lost consciousness for about 20 minutes. As a result of the injuries he sustained, the Complainant was admitted in hospital for a whole week.
10. Whilst the Complainant was robbed at about 9. 30p.m on 7th October 2008, the Petitioner was arrested at about 10. 00a.m on 8th October 2008, after being spotted riding the Complainant’s bicycle. In effect, the Petitioner did not care at all about the injuries inflicted upon the Complainant. If anything, the Petitioner was “enjoying” riding the bicycle which had been obtained through a violent robbery, on the previous night.
11. I have taken into account the circumstances in which the offence was committed. I have also taken into account the mitigation put forward by the Petitioner, immediately after he had been convicted.
12. Thirdly, I have taken into account the one year which the Petitioner remained in custody whilst he was still on trial.
13. Having taken into account all those factors, I now re-sentence the Petitioner to 30 Years imprisonment.
14. Finally, when calculating the actual duration of time which the Petitioner shall spend in prison custody, on account of the sentence, I direct that the same will be discounted by one Year, in compliance with Section 333 (2)of the Criminal Procedure Code.
DATED, SIGNED and DELIVERED at KISUMU This7thday of July2021
FRED A. OCHIENG
JUDGE