Elim Elim Joseph v Republic [2019] KEHC 820 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MERU

PETITION NO. 131 OF 2018

ELIM ELIM JOSEPH........................................................................PETITIONER

VERSUS

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

RULING ON RE-SENTENSING

1. The petitioner, Elim Elim Joseph,with another were charged before the Principal Magistrate’s Court at Isiolo with the offence of robbery with violence contrary to section 296(2) of the Penal Code.

2. It was alleged that on 2/2/2007 at Isiolo Township, within the then Eastern Province jointly with another while armed with a dangerous weapon, namely, a kitchen knife they robbed Ali Hassanof cash Kshs. 4,300/- and at or immediately before or immediately after the time of such robbery threatened to use actual violence on the said Ali Hassan.

3. His appeals, both to this Court (Kasango and Emukule JJ) and the Court of Appeal, were dismissed on 18/6/2010 and 30/4/2014, respectively.

4. Vide his Motion on Notice dated 18/9/2019, the petitioner has petitioned this Court to review his sentence on the basis of the Supreme Court decision in the case of Francis Muruatetu and Others vs Republic [2017] eKLR.

5. In that case, the Supreme Court of Kenya held that the mandatory nature of the death sentence under Section 204 of the Penal Code was unconstitutional as it denied the Court its discretion in sentencing. The Court proceeded to set out the criteria or the principles that should guide a Court in sentencing. Some of the considerations are age of the offender, being a first offender, whether the offender pleaded guilty, the character and record of the offender, commission of the offence in response to gender-based violence, remorsefulness of the offender, the possibility of reform and social re-adaptation of the offender and any other factor that the Court considers relevant.

6. Though the Supreme Court was dealing with the offence of murder, the view I take is that the same principle applies in other cases where the law provides for a mandatory death sentence including robbery with violence. Seethe Court of Appeal decision in William Okungu Kittiny vs. Republic [2018] eKLR.

7. I have considered the foregoing and the circumstances under which the offence was committed. The appellant was in the company of another, the value of the property robbed was Kshs. 4,300/-. The victim was not injured.

8. The state submitted that the death sentence be maintained or in the alternative, a sentence of not less than 20 years be meted out.

9. Accordingly, taking into consideration the facts of the case and the mitigation given, I set aside the death sentence and substitute therefor with a sentence of 10 years imprisonment. The sentence is to run from the day of first conviction.

DATED AND DELIVERED AT MERU THIS 3RD DAY OF DECEMBER, 2019.

A. MABEYA

JUDGE