Onyango & 2 others v Republic [2022] KEHC 10700 (KLR)

Onyango & 2 others v Republic (Criminal Petition E025 of 2021) [2022] KEHC 10700 (KLR) (7 June 2022) (Judgment)

Neutral citation: [2022] KEHC 10700 (KLR)

Republic of Kenya

In the High Court at Kisumu

Criminal Petition E025 of 2021

FA Ochieng, J

June 7, 2022

Between

Erick Onyango

1st Petitioner

Erick Onyango Otieno

2nd Petitioner

Stephen Omondi Ochieng

3rd Petitioner

and

Republic

Respondent

Judgment

The Petitioners herein are Erick Onyango, Erick Onyango Otieno, and Stephen Omondi Ochieng. 1. All the 3 Petitioners were convicted for the offence of Robbery with Violence contrary to Section 296 (2) of the Penal Code. They were then sentenced to suffer Death as by law prescribed.

2. They have now invoked the provisions of Articles 27 (1) and (2) of the Constitution, together with Article 50 (2) of the said Constitution.

3. Their quest is for the review of the sentence, because they believe that the mandatory nature of the Death Sentence was unconstitutional.

4. When canvassing the petition, the Petitioners also invoked the provisions of Section 333 (2)of the Criminal Procedure Code.

5. Although the Petitioners provided the Court with a copy of the proceedings before the trial Court, including the Judgment, I failed to trace the post-judgment proceedings. In particular, the notes made when the trial court was handing down the sentences, were not made available to this Court.

6. In the circumstances, I was unable to verify whether or not the Death Penalty was imposed solely because the trial court deemed it mandatory.

7. In the Supreme Court’s decision, in the case of Francis Karioko Muruatetuvs Republic 2017 eKLR, it was held that the mandatory nature of the death sentence, for the offence of murder, was unconstitutional.

8. The Court noted thus;“Where a court listens to mitigatingcircumstances but has nonetheless,to impose a set sentence, the sentenceimposed fails to conform to the tenetsof fair trial that accrue to accusedpersons under Article 25 of theConstitution; an absolute right.”

9. The Supreme Court decried the formal equal penalty for unequal wicked crimes and criminals, as the same was not in keeping with the tenets of fair trial.

10. Nonetheless, whilst the Court emphasized the need for a generous and purposive interpretation of constitutional provisions which protect human rights, it went on to make it clear that Article 26 (3) of the Constitution permits the deprivation of life within the confines of the law.

11. The Court said that whilst the mandatory nature of the Death Penalty was unconstitutional, the Court did not outlaw the death penalty; and that the said penalty would still be applicable as a discretionary maximum punishment.

12. Therefore, as the Petitioners failed to demonstrate to this Court that the sentence was imposed on the grounds that it was mandatory, I decline to so find.

13. As regards the applicability of Section 333 (2) of the Criminal Procedure Code, I do share the sentiments expressed by Ms M. Odumba, learned State Counsel. In effect, even though the Petitioners had each spent 1 year, 2 months and 4 days in custody during the trial, they cannot benefit from a reduction of the actual period to be spent in serving custodial sentence, because the sentence does not have any specific duration.

14. In the result, the Petition is rejected.

DATED, SIGNED and DELIVERED at KISUMUTHIS 7TH DAY OF JUNE 2022FRED A. OCHIENGJUDGE