[2019] KEHC 845 (KLR)

[2019] KEHC 845 (KLR)

The court held that following the Supreme Court's decision in Muruatetu, the mandatory death sentence for robbery with violence is unconstitutional only to the extent that it removes judicial discretion and the right to mitigation. The applicant, a police reservist, abused his position and public trust by using a government-issued firearm to commit a violent robbery. The court found that the applicant did not demonstrate genuine remorse, attempted to delay proceedings, and was the primary instigator of the crime. Despite his mitigation and evidence of rehabilitation, the gravity of the offence, abuse of trust, and lack of genuine remorse warranted a severe custodial sentence. The court...

Citation
[2019] KEHC 845 (KLR)
Parties
Applicant: Vincent Onyango Musingo; Respondent: Republic
Court
High Court
Court Station
High Court at Siaya
Jurisdiction
Kenya
Judgment Date
26 November 2019
Case Number
Miscellaneous Criminal Application 22 of 2018
Procedural Posture
Miscellaneous Criminal Application / Resentencing Petition After Conviction and Appeals Dismissed
Outcome
Petition for resentencing allowed. Applicant resentenced to fifty years' imprisonment from date of arrest, sentences to run concurrently.
Judges
RE Aburili
Legal Topics
Robbery With Violence, Sentencing Discretion, Mitigation, Firearm Offences
Source Language
English
Criminal Law Robbery With Violence Sentencing Discretion Mitigation Firearm Offences

Case Brief

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Parties

Vincent Onyango Musingo

Applicant

Republic

Respondent

Procedural Posture

Miscellaneous Criminal Application / Resentencing Petition After Conviction and Appeals Dismissed

Legal Issues

  1. 1 Whether the mandatory death sentence for robbery with violence is unconstitutional following the Supreme Court decision in Muruatetu.
  2. 2 Whether the applicant is entitled to resentencing and, if so, what sentence is appropriate given the circumstances of the offence and the applicant's 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 only to the extent that it removes judicial discretion and the right to mitigation. The applicant, a police reservist, abused his position and public trust by using a government-issued firearm to commit a violent robbery. The court found that the applicant did not demonstrate genuine remorse, attempted to delay proceedings, and was the primary instigator of the crime. Despite his mitigation and evidence of rehabilitation, the gravity of the offence, abuse of trust, and lack of genuine remorse warranted a severe custodial sentence. The court...

Court Disposition

Petition for resentencing allowed. Applicant resentenced to fifty years' imprisonment from date of arrest, sentences to run concurrently.

Orders

  • The applicant is resentenced to fifty (50) years' imprisonment, calculated from 7.6.2011.
  • The sentence will run concurrently with sentences imposed on the other two counts.