Kevin Ochieng Oyugi v Republic [2019] KEHC 7801 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISUMU

(CORAM: CHERERE- J.)

PETITION NO.67 OF 2018

BETWEEN

KEVIN OCHIENG OYUGI.......................PETITIONER

AND

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

JUDGMENT

INTRODUCTION

1. KEVIN OCHIENG OYUGI, (hereinafter referred to as the petitioner) was on 24th January, 2003 convicted and sentenced to death for robbery with violence contrary to section 296(2)of the Penal Code in Kisumu Criminal Case No. 250 of 2002. Petitioner lodged an appeal Kisumu High Court Criminal Appeal No. 45 of 2003 which was dismissed on 2nd November, 2006 whereupon the conviction and sentence were upheld. The petitioner subsequently appealed to the Court of Appeal in Kisumu Criminal Appeal No. 364 of 2006and the appeal was similarly dismissed and his conviction and sentence upheld in a judgment dated 22nd June, 2007.

2. The petitioner has petitioned this court for resentencing.  He urged the court to consider that he had reformed.

3. Mr. Muia, learned counsel for the state urged court to consider that the robbery was committed by Petitioner and others who were armed with pangas and knives. Complainant was robbed and injured on the neck, both cheeks and lower. The state proposed that the petitioner be resentenced to 10 more years over and above the years already served.

Analysis and Determination

4. The Supreme Court decision in 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 Republic KSM 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.

5. I have considered the Sentencing Policy Guidelines, 2016and their application which is intended to promote transparency, consistency and fairness in sentencing (See Michael Kathewa Laichena & another v Republic [2018] eKLR).

6. The maximum sentence for simple robbery is 14 years’ imprisonment.  The mitigating circumstances in this case are that the petitioner could be considered a first offender. The facts from the record shows that the offence took place at night and the robbers although armed with pangas and knives used actual violence on the complainant.

6. 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 court record shows that the petitioner was arrested on 7th June, 2002. He remained in custody for 7 months during the trial and has served 16 years since conviction.

9.  I have considered judgments of Superior Courts that are intended to ensure consistency and fairness. In the case of Wycliffe Wangusi Mafura v Republic ELD CA Criminal Appeal No. 22 of 2016 [2018] eKLR , the Court of Appeal imposed a sentence of 20 years where the appellant was involved in robbing an Mpesa shop with the use of a firearm with which he threatened the attendant but was caught before he inflicted any violence on her.  In Robert AchapaOkello v Republic [2018] eKLR, this court resentenced the Petitioner who had been in custody for 15 years to period served on account of the fact that no violence was meted on the complainants unlike in this case where complainant was injured.

10. After considering all the mitigating and aggravating factors, the fact that complainant was injured during the robbery and the fact that the petitioner has been in custody for 16 years and 10 months, I re-sentence him to 25 yearsfrom date of conviction.

11. Further to the foregoing, the Petitioner’s sentence having been commuted to a definite imprisonment term is also entitled to benefit from remission of sentence if he meets the conditions.  It is so ordered.

DATED AND SIGNED IN KISUMU THIS4thDAY OFApril2019

T. W. CHERERE

JUDGE

Read in open court in the presence of-

Court Assistant- Felix

Petitioner- Present in person

For the State- Mr. Muia