High Court 1364 of 2011

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KISUMU CRIMINAL APPEAL NO. 53, 54 & 55 OF 2010 BOAZ ONYANGO........................................................................1ST APPELLANT FREDRICK OSODO OMONDI......................................................2ND APPELLANT MARTIN OCHIENG OWORI.........................................................3RD APPELLANT -VERSUSREPUBLIC......................................................................................RESPONDENT RULING The 3 appellants were charged with the offence of Robbery contrary to Section 296(2) of the Penal Code. The trial court convicted the appellants of the offence and sentenced them to death. We confirmed the conviction in our judgment of the 4th of August, 2011. However we faulted the trial court for not giving the appellants an opportunity to arrest the death sentence and for holding that the only sentence available for the offence is the death penalty. In mitigation to arrest the death sentence the appellants stated as follows:- 1ST APPELLANT: Boaz Onyango. He is remorseful, young with a bright future which should not be shattered by the death sentence. If given an opportunity he will further his education. He is 20 years old. 2ND APPELLANT: Fredrick Osodo Omondi. He is a first offender, remorseful, young man who needs rehabilitation. He is 27 years. 3RD APPELLANT: Martin Ochieng Owuor. Despite denying the offence in many words, he sought for leniency, he is married. On its side the prosecution informed the court that there are no previous records and the appellants may be treated as first offenders. We have considered the mitigation by the appellants. We have also taken into account the goods subject of the Robbery were valued at Kshs 2,000/=, and that the complainant received a knife stab during the robbery incident. Although the offence committed is serious and on the rise weighed against all odds, we find that the death sentence is harsh and excessive in the circumstance of the case.

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