Ahmed Shaban Odhiambo v Republic [2019] KEHC 217 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KISUMU

(CORAM: CHERERE-J)

CRIMINAL PETITION NO. 59 OF 2019

BETWEEN

AHMED SHABAN ODHIAMBO............................................................PETITIONER

AND

REPUBLIC...............................................................................................RESPONDENT

JUDGEMENT

Introduction

1. On 15th August, 2008, the trial court in NYANDO CRIMINAL CASE NO.1538 OF 2006, convicted and sentenced the Petitioner to death for theoffence of robbery with violence contrary to section296(2)of the Penal Code. Petitioner lodged an appealKISUMU HIGH COURT CRIMINAL APPEALNO. 124 of 2008which was dismissed by a judgment dated03rdAugust, 2010. The Petitioner does not appear to have appealed to the Court of Appeal.

2. The Petitioner has petitioned this court for resentencing.  Heexpressed remorse and stated that he was arrested on 17thAugust, 2006 and has been in custody since then.

3. Ms. Gathu, Senior Prosecution Counsel for the state submitted that the offence was heinous and complainants were injured during the robbery and recommended that Petitioner 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 deathsentence 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 wounded. The Petitioner has trained and achieved a certificate of participation in income generating projects.

9. Petitioner was a first offender. The court record shows that the petitioner has served 11 years and 4 months since the date of conviction. He is re-sentenced to 15 years’ imprisonment from 15th August, 2008when he was convicted.

DELIVERED AND SIGNED IN KISUMU THIS  18thDAY OF  December 2019

T. W. CHERERE

JUDGE

In the presence of-

Court Assistant            -  Amondi/Okodoi

Petitioner                      -  Present in person

For the State                -  Ms. Gathu