Thomas Wekesa Nyongesa v Republic [2019] KEHC 8216 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT ELDORET

CORAM: D.S. MAJANJA J.

CRIMINAL APPEAL NO. 56 OF 2017

BETWEEN

THOMAS WEKESA NYONGESA.........................APPELLANT

AND

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

(Being an appeal from the original conviction and sentence of Hon. M. Wambani, CM dated 19th May 2017 at Eldoret Magistrate’s Court in Criminal Case No. 289 of 2012)

JUDGMENT

1. The appellant, THOMAS WEKESA NYONGESA, was charged, convicted and sentenced to death for the offence of robbery with violence contrary to section 296 (2)of the Penal Code (Chapter 63 of the Laws of Kenya). The particulars of the charge were that on 17th January 2012 at Langas Estate in Wareng District within Rift Valley Province jointly with others not before the court being armed with an offensive weapon namely a hammer, he robbed PAUL NJUGUNA NJOGU of his motorcycle make KING BIRD registration number KMCT 776F, red in colour valued at Kshs. 83,000/- and immediately before such robbery wounded the said PAUL NJUGUNA NJOGU.

2. At the hearing of this appeal, the appellant abandoned the appeal on conviction and submitted that he was only contesting the sentence of death imposed on him. I have considered the circumstances of the offences noting that the mandatory death sentence was found unconstitutional by the Supreme Court inFrancis Karioko Muruatetu & Another v Republic SCK Pet. No. 15 OF 2015 [2017] eKLR.The same principle was applied to the offence of robbery with violence under section 296(2) of the Penal Code by the Court of Appeal in William Okungu Kittiny v Republic KSM CA Criminal Appeal No. 56 of 2013 [2018] eKLR.

3. I quash the sentence of death imposed on the appellant and substitute the same with twelve(12) years imprisonment from 30th September, 2012.

DATED and DELIVERED at ELDORET this 24th day of April 2019.

D.S. MAJANJA

JUDGE

Appellant in person.

Ms Mumu, Prosecution Counsel, instructed by the Office of Director of Public Prosecutions for the respondent.