John Kepha Otieno & Patrick Ayub Orinda v Republic [2019] KEHC 4702 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KISII

HCCRA NO. 130 OF 2010

AT KISII

FROM ORIGINAL CR. CASE OF 354 OF 2009 AT SRM’S MIGORI

CONSTITUTION PETITION NO. 54 OF 2018

JOHN KEPHA OTIENO

PATRICK AYUB ORINDA.......................................APPLICANTS

VERSUS

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

JUDGMENT

1. The petitioners JohnKepha Otieno and Patrick Ayub Orinda seeks resentencing. The petitioners were convicted of the offence of robbery with violence contrary to section 296 (2) of the Penal Code and were sentenced to death. Their appeal to the High Court, in HCCR No. 130 of 2010 was dismissed and their second appeal to the Court of Appeal too was dismissed.

2. The petitioners rely on the Supreme Court decision in Francis Karioko Muratetu & Another vs. Republic SCK Petition No. 15 of 2015 declaring the mandatory death penalty unconstitutional. The Court of Appeal’s decision in William Okungu vs. Republic Criminal Appeal No. 56 of 2013held  as follows;

[9]  From the foregoing, we hold that the findings and holding of the Supreme Court particularly in paragraph 69 applies mutatis mutandis to Section 296 (2) and 297 (2) of the Penal Code.  Thus, the sentence of death under Section 296 (2) and 297 (2) of the Penal Code is a discretionary maximum punishment.

3.  I have read the proceedings and judgments of the lower court and the High Court. It is clear that during the robbery the applicants were armed, they injured the complainants, noting the circumstances of the case and also noted that the petitioners have been in custody since 25th June 2010, about 9 years. I re-sentence John Kepha Otieno to a period of   twenty (20) years from the 25th June 2010. I also re-sentence Patrick Ayub Orinda to a period of twenty (20) years from the 25th June 2010.

Dated signed and delivered at Kisii this 3rd  day of July 2019.

R.E.OUGO

JUDGE

In the presence of;

John Kepha Otieno         In person

Patrick Ayub Orinda      In person

Mr. Otieno                  Senior Prosecution Counsel Office the DPP

Rael                           Court clerk