Douglas Owiye Onyango v Director of Public Prosecutions [2020] KEHC 9098 (KLR)

THE REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

CONSTITUTIONAL AND HUMAN RIGHTS DIVISION

PETITION NO. 215 OF 2018

DOUGLAS OWIYE ONYANGO...................................PETITIONER

VERSUS

THE DIRECTOR OF PUBLIC PROSECUTIONS....RESPONDENT

JUDGMENT

1. Douglas Owiye Onyango, the Petitioner herein, and Assumpta Syuwai Kivindyo (not in this petition), were charged before the Chief Magistrate’s Court at Mombasa with one count of robbery with violence contrary to Section 296(2) of the Penal Code.  They were said to have jointly robbed Victor Karanu (the deceased), of several items as enumerated in the charge sheet presented to the court on 30/3/2007, and immediately before or immediately after killed the deceased by strangulation.

2. Having denied the charge, the matter proceeded to full hearing with the prosecution calling a total of seven witnesses before closing its case.  When placed onto their defence, they opted to testify on oath and called no witnesses.  After considering the evidence before the court and submissions by the prosecution, the learned magistrate found them guilty as charged, convicted them and sentenced them to suffer death in the manner prescribed by law.

3.  The Petitioner lost his appeals both in the High Court and in the Court of Appeal.

4. The Petitioner is now in this court for resentencing purposes pursuant to Francis Karioko Muruatetu & Another vs. Republic [2017]eKLR.

5. The Petitioner submitted that he regrets the crime and that he has since reformed and is a changed person.  The Petitioner has been in jail for 13 years.  While in jail he has taken trainings in paralegal skills, basic criminal law and access to justice.  In prison he is deployed as a paralegal officer or legal advisor.  He is a counselor and a stress manager.  The progress report speaks well of the Petitioner, that he is well behaved, is born again and seriously undertakes bible studies.

6. The Petitioner attached to his submissions a number of value based certificates of achievement while in the prison.  I have considered all those achievements.

7. The Petitioner submitted that he was arrested in 2006 when he was only 30 years.  He regrets his criminal past and prayed for a jail term not exceeding 20 years.

8. On his part Mr. Fedha, learned counsel for the prosecution submitted that despite the aforesaid achievements, the Petitioner took away an innocent life and should be adequately punished.  Counsel submitted that a jail term of 45 years is adequate.

9. I have considered both submissions.  The Petitioner not only robbed his victim, but also killed him and dumped his body in a septic tank.  That was a most cruel action which deserves to be seriously punished.  I appreciate that the Petitioner cannot salvage history now.  I also appreciate that the Petitioner may have indeed changed and reformed.  I also appreciate that the Petitioner is now serving the inmates and is a responsible inmate.  I have taken the Petitioner’s achievements in arriving at the sentence which I will hereunder pronounce.  If these achievements were not there, the sentence would have been much grimmer.  What I am saying is that the court takes into account the determined effort of inmates to reform and change for the better.  After taking account of all these, the court will still not loose site of the magnitude of the crime.  The court must be able to balance the conflicting interests of the Petitioner and the victim together with those of the society.

10.  I have particularly noted how the Petitioner robbed and killed the complainant and dumped his body in a septic tank.  The Petitioner may have reformed, but he intentionally robbed and killed an innocent person and damped his body in a septic tank.  That person he killed also had parents and relatives who loved him.  They are entitled to justice.  The justice of this matter deserves deterrent punishment.

11.  In the upshot I make orders as follows:

(i)   I set aside the death sentence given to the Petitioner by trial court.

(ii)   In place thereof I hereby sentence the Petitioner to serve a prison term of forty (40) years from the date of arrest.

Right of appeal in 14 days.

Dated, Signed and Delivered at Mombasa this 21st day of January, 2020

E. K. O. OGOLA

JUDGE

In the presence of:

Mr. Fedha for DPP

Petitioner in person

Mr. Kaunda Court Assistant