REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KITALE CRIMINAL PETITION NO. 74 OF 2018 JULIUS WASWA......................................................................PETITIONER VERSUS REPUBLIC...............................................................................RESPONDENT RULING 1. The petitioner was convicted of the offence of robbery with violence contrary to Section 296 (2) of the Penal Code and sentenced to death on in Kitale Cmcr Case No. 1540 of 2011 on 15/06/2012. His first appeal to the High Court was unsuccessful. 2. The petitioner has now filed the instant application seeking for re-sentencing which has been necessitated by the Supreme Court decision in Francis Karioko Muruatetu & Another –Vs- Republic Petition No. 15 of 2015 (2017) eKLR whereby the mandatory death sentence for the offence of murder was declared unconstitutional. As a corollary, in the case of William Okungu Kittiny –Vs- Republic Kisumu Criminal Appeal No. 56 of 2013 (2018) eKLR, the Court of Appeal applied the Muruatetu decision mutatis mutandis to the provisions of Section 296 (2) of the Penal Code which imposes a mandatory death penalty for the offence of robbery with violence. The petitioner is seeking that the death sentences imposed on them be set aside and for the court to impose an appropriate sentence. 3. In Francis Karioko Muruatetu & Another –Vs- Republic the Supreme Court stated the following guidelines as mitigating factors in a re-hearing sentence for the conviction of a murder charge:(a) age of the offender; (b) being a first offender; (c) whether the offender pleaded guilty; (d) character and record of the offender; (e) commission of the offence in response to gender-based violence; (f) remorsefulness of the offender; (g) the possibility of reform and social re-adaptation of the offender and (h) any other factor that the court considers relevant. These factors are also applicable in a re-sentencing for the offence of robbery with violence. 4. I have also considered The Sentencing Policy Guidelines, 2016 and its application which lists the objectives of sentencing at page 15 paragraph 4.1 as follows: 1. Retribution: To punish the offender for his/her criminal conduct in a just manner.
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2. Deterrence: To deter the offender from committing a similar offence subsequently as well as to discourage other people from committing similar offences. 3. Rehabilitation: To enable the offender reform from his criminal disposition and become a law abiding person. 4. Restorative Justice: To address the needs arising from the criminal conduct such as loss and damages. Criminal conduct ordinarily occasions victims, communities’ and offenders’ needs and justice demands that these are met. Further, to promote a sense of responsibility through the offender’s contribution towards meeting the victims’ needs. 5. Community protection: To protect the community by incapacitating the offender. 6. Denunciation: To communicate the community’s condemnation of the criminal conduct. 5. In determining this Petition, 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 , where 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. 6. In Paul Ouma Otieno Vs Republic ( 2018) eKLR where the convict was armed with an AK 47 rifle and a kitchen knife and robbed the complainant of cash Kshs. 450,000/= and 3 mobile phones , Majanja J substituted the death sentence with 20 years’ imprisonment commencing on the date of the sentence by the trial court. 7. I have considered the stated principles of sentencing and the above cited authorities. I have also considered the circumstances in which the offence was committed in that the petitioner the and his colleagues sodomized a small girl and assaulted other persons in the process of committing the offence. 8. I do not think that the period served in prison is sufficient for the serious offence committed by the Petitioner. I hereby re sentence him to Twenty Two (22) years imprisonment from the date he was convicted by the trial court, that is 15/06/2012. Signed, Dated and Delivered at Kitale on this 5th day of March, 2020. ______________ H.K. CHEMITEI JUDGE 5/3/2020 In the presence of:Ms Kagali for the Respondent Applicant present Court Assistant – Kirong Ruling read in open court.
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