[2019] KEHC 647 (KLR)
The court found that, following the Supreme Court's decision in Muruatetu, the mandatory death sentence for robbery with violence is unconstitutional, necessitating resentencing for affected persons. The court considered the seriousness of the offence, the injuries suffered by the complainant, the fact that the...
Source-derived case information.
- Citation
- [2019] KEHC 647 (KLR)
- Parties
- Appellant: Vincent Etyang; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Criminal Petition 67 of 2019
- Procedural Posture
- Criminal Petition / Resentencing After Conviction and Appeals
- Outcome
- Petition for resentencing allowed; petitioner re-sentenced to 20 years' imprisonment from 21st June, 2010.
- Judges
- TW Cherere
- Legal Topics
- Robbery With Violence, Mandatory Sentencing, Resentencing, Constitutional Rights, Sentencing Guidelines
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Vincent Etyang
Appellant
Republic
Respondent
Procedural Posture
Criminal Petition / Resentencing After Conviction and Appeals
Legal Issues
- 1 Whether the petitioner is entitled to resentencing following the Supreme Court decision declaring the mandatory death sentence unconstitutional.
- 2 What is the appropriate sentence for the petitioner considering the circumstances of the offence and time already served.
Ratio Decidendi
The court found that, following the Supreme Court's decision in Muruatetu, the mandatory death sentence for robbery with violence is unconstitutional, necessitating resentencing for affected persons. The court considered the seriousness of the offence, the injuries suffered by the complainant, the fact that the petitioner was a first offender, and the period already served in custody. Applying the Sentencing Policy Guidelines and section 333(2) of the Criminal Procedure Code, the court determined that a sentence of 20 years' imprisonment from the date of conviction was appropriate, taking into account the petitioner's rehabilitation efforts and the need for proportionality in sentencing.
Court Disposition
Petition for resentencing allowed; petitioner re-sentenced to 20 years' imprisonment from 21st June, 2010.
Orders
- The petitioner is re-sentenced to 20 years' imprisonment from 21st June, 2010.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISUMU
(CORAM: CHERERE-J)
CRIMINAL PETITION NO. 67 OF 2019
BETWEEN
VINCENT ETYANG......................................................PETITIONER
AND
REPUBLIC................................................................RESPONDENT
JUDGEMENT
Introduction
1. On 21st June, 2010, the trial court in BUSIA CRIMINAL CASE NO. 1059 OF 2008, convicted and sentenced the Petitioner to death for the offence of robbery with violence contrary to section 296(2) of the Penal Code. Petitioner lodged an appeal BUSIA HIGH COURT CRIMINAL APPEAL NO. 40 of 2010 which by a judgment dated 06th March, 2012 upheld the conviction and substituted the death sentence with a life sentence. The Petitioner subsequently appealed to the Court of Appeal in KISUMU CRIMINAL APPEAL NO. 40 of 2012which by a judgment dated 04th June, 2019 upheld the conviction and life sentence.
2. The Petitioner has petitioned this court for resentencing. He expressed remorse and stated that he was arrested in 2008 at the age of 28 years and had been in custody since then having served 10 years since conviction within which time he has been trained and obtained various certificates.
3. Ms. Gathu, Senior Prosecution Counsel for the state submitted that the offence was heinous in that the victim was not only robbed but also injured. While appreciating that the petitioner was arrested at the age of 28 years, the state recommended that he be resentenced to 20 years.
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’s decision in Francis Karioki Muruatetu & Another v Republic & 5 others [2016] eKLRdeclaring the mandatory death sentence unconstitutional has necessitated resentencing of all persons previously sentenced to the mandatory death sentence.
6. I have considered The Sentencing Policy Guidelines, 2016 and its application which is intended to promote transparency, consistency and fairness in sentencing (See Michael Kathewa Laichena & another v Republic [2018] eKLR).
7. 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.
8. The complainant was robbed and he suffered cut wound on the back of head with a healed 6 cm scar with suture stitches.
9. Petitioner was a first offender. The complainant’s motor cycle was not recovered. The attack on complainant’s back of head was intended to incapacitate him and he is lucky to have survived. The court record shows that the petitioner has served 9 years and 6 months since the date of conviction. He is re-sentenced to 20 years’ imprisonment from 21stJune, 2010when he was convicted.
DELIVERED AND SIGNED IN KISUMU THIS 18th DAY OF December 2019
T. W. CHERERE
JUDGE
In the presence of-
Court Assistant - Amondi/Okodoi
Petitioner - Present in person
For the State - Ms. Gathu