Stephen Kinoti M’Ikiao v Republic [2020] KEHC 1017 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MERU

PETITION NO. 75 OF 2018

STEPHEN KINOTI M’IKIAO....PETITIONER

VERSUS

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

RULING ON RE-SENTENSING

1. The Petitioner, Stephen Kinoti M’Ikiao, was together with others charged before the Senior Resident Magistrate’s Court at Isiolo with robbery with violence contrary to section 296(2) of the Penal Code on the 1st count.

2. On the 2nd count, he was charged with being in possession of a firearm without a certificate contrary to section 4 (2) of the Firearm Act.

3. On the 3rd count he was charged with assault causing actual bodily harm contrary to section 251 of the Penal Code.

2. It was alleged that on 19/12/2005 at 8. 30 pm at Kiwanja Ndege area in Isiolo District, Eastern province, the petitioner together with others while armed with a rifle and pangas jointly robbed Moses Kaunyange of a TV set make Tel Star a VCD Machine make Orion and a KV Battery, all being of the value of Kshs. 12,800 and that during the robbery wounded the said Moses Kaunyange.

3. After the trial, the petitioner was found guilty on all the 3 counts and sentenced to death on the 1st count. The 2nd and 3rd counts were held in abeyance. Being aggrieved by that decision, the petitioner appealed to the High Court at Meru vide criminal appeal 150 of 2006 and to the Court of Appeal at Nyeri vide Criminal Appeal 115,121,122 and 127 of 2008 where in both appeals, the courts upheld the conviction and sentence. However, the court of appeal commuted the death penalty to that of life imprisonment.

4. Vide his Motion on Notice dated 12/4/2018, the petitioner 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 denies 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 case of 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 petitioner was in the company of others, the value of the property robbed was valued at Kshs. 12,800/- and the victim was injured in the process.

8. When the Court asked the petitioner to mitigate, he said that he is remorseful and has overstayed in custody. The state submitted that the life sentence be maintained.

9. Accordingly, taking into consideration the facts of the case, and the lack of any mitigation on the part of the petitioner, it is clear that the petitioner being in incarceration for 13 years is remorseful. In light of this I therefore set aside the life sentence and resentence him to 20 years imprisonment from the date of his original sentence. He shall be entitled to remission in the ordinary manner.

10. As regards counts 2 and 3, the petitioner is to serve 5 years imprisonment. The sentences are to run concurrently from the date he was first sentenced.

SIGNEDat Nairobi.

A. MABEYA, FCIArb

JUDGE

DATEDand DELIVERED at Meru this  10th day of December, 2020.

JUDGE