David Onganyi Alela, Enos Kalo Akute, Melazadeck Kengo Khamati, Eliakim Elishe John & Elphas Kengo Onyango v Republic [2019] KEHC 7158 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISUMU

(CORAM: CHERERE-J)

CRIMINAL PETITION NO. 71 OF 2018

BETWEEN

DAVID ONGANYI ALELA.........................1ST PETITIONER

ENOS KALO AKUTE.................................2ND PETITIONER

MELAZADECK KENGO KHAMATI......3RD PETITIONER

ELIAKIM ELISHE JOHN.........................4TH PETITIONER

ELPHAS KENGO ONYANGO.................5TH PETITIONER

AND

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

JUDGEMENT

Introduction

1. On 7th June, 2003, the trial court in MASENO Criminal Case No.825 OF 2003,the Petitioners were convicted and sentenced to death for 2 counts of robbery with violence contrary to section 296(2)of the Penal Code. They were also convicted for rape contrary to section 140 of the Penal Code.Petitioners lodged an appeal Kisumu High Court Criminal Appeal No. 96 OF 2004which was dismissed on 27th March, 2007 whereupon the conviction and sentences were upheld. The petitioners subsequently appealed to the Court of Appeal in Kisumu Criminal Appeal No. 99 of 2007 and the Court of Appeal similarly upheld his conviction and sentence by a judgment dated 16th January, 2009.

2. By a petition filed on 13th May, 2019, the petitioners have petitioned this court for resentencing.

3. Ms. Gathu, learned counsel for the state submitted that the petition was not opposed and proposed that the petitioners be sentenced to an imprisonment term of 30 years from date of conviction for the reason that the Petitioners beat and robbed two complainants and gang raped another for over 5 hours.

4. Ms. Obiero for the Petitioners urged the court to consider that they had served 16 years and resentence them to period served.

Analysis and Determination

5. At the time of the petitioner’s conviction, death was the only available sentence for robbery with violence and imprisonment for a term of not less than fifteen years but which may be enhanced to imprisonment for life for the offence of gang rape.

5. The Supreme Court decision in the case of Francis Karioki Muruatetu & Another v Republic & 5 Others [2016] eKLR declaring the mandatory death sentence unconstitutional has necessitated resentencing of all persons previously sentenced to the mandatory death sentence. In the case of William Okungu Kittiny v RepublicKSM CA Criminal Appeal No. 56 of 2013 [2018] eKLR, the Court of Appeal applied the Muruatetu Case (Supra) mutatis mutandis to the provisions of section 296(2) of the Penal Code(Chapter 63 of the Laws of Kenya) which imposes the mandatory death penalty for the offence of robbery with violence and held that death was a discretionary maximum sentence.

6. In the case of Michael Kathewa Laichena & another v Republic [2018] eKLR, Majanja J, précised the procedure that a court considering resentencing. The court further stated that the Guidelines do not replace judicial discretion but are intended to promote transparency, consistency and fairness in sentencing.

7. The maximum sentence for simple robbery is 14 years’ imprisonment. The mitigating circumstances in this case are that the petitioner could be considered first offenders. The aggravating factors are that the Petitioners not only robbed and injured two of the complainants but also gang raped one for over 5 hours.

8. 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. The Petitioners have served about 16 years from date of conviction.

9. The use of guideline judgments of Superior Courts has also been underlined to ensure consistency and fairness. In PETITION NO.67 OF 2018KEVIN OCHIENG OYUGI vs REPUBLIC (unreported), I resentenced the appellant to 25 years where the robbery was aggravated serious injuries to the complainant.

10. Although the Petitioners are first offenders, it cannot be overlooked that the they committed a heinous crime, and occasioned severe trauma and suffering to the young girl. Their actions are aggravated by gang raping of the complainant which deserves a sentence commensurate to the offences they committed. I have considered that petitioners have already served 16 years, and henceI re-sentence them to an imprisonment term of 30 years from date of initial conviction.

12. Further to the foregoing, the Petitioners’ sentences having been commuted to a definite imprisonment term are also entitled to benefit from remission of sentence if they meet the conditions. It is so ordered.

DATED AND DELIVERED IN KISUMU THIS 30th DAY OF May 2019

T.W. CHERERE

JUDGE

Delivered in open court in the presence of-

Court Assistant   - Felix

1st Petitioner  - Present

2nd Petitioner   - Present

3rd Petitioner   - Present

4th Petitioner   - Present

5th Petitioner  - Present

For the Petitioners -Ms Obiero

For the State -Ms Gatho