Elisha Omukaya Muyeya alias Dorobo & 1 other v Republic & 1 other

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KISUMU (CORAM: CHERERE-J) PETITION NO. 63 & 64 OF 2019 (Consolidated) BETWEEN ELISHA OMUKAYA MUYEYA alias Dorobo.…..1ST PETITIONER CHARLES MUKUNA OMINDE.…..…..………...2ND PETITIONER AND REPUBLIC………………………….....……….………RESPONDENT JUDGEMENT Introduction 1. On 13th July, 2007, the trial court in NYANDO CRIMINAL CASE NO.1304 OF 2006 convicted and sentenced the Petitioners to death for the offence of robbery with violence contrary to section 296(2) of the Penal Code The death sentence was later commuted to life imprisonment. 2. Petitioners lodged appeals KISUMU HIGH COURT CRIMINAL APPEAL NO. 72 and 73 of 2006 which were dismissed on 26th June, 2007 whereupon the conviction and sentence were confirmed. Their appeal to the Court of Appeal vide KISUMU CRIMINAL APPEAL NO. 101 OF 2007 was similarly dismissed and the conviction and sentence confirmed. 3. Petitioners have petitioned the court for resentencing. Ms. Gathu, learned counsel for the state submitted that the petition was not opposed and proposed that the Petitioners who not only robbed the complainant but injured her hand be resentenced to 40 years. Analysis and Determination 4. The Supreme Court’s decision in Francis Karioki Muruatetu & Another v Republic & 5 others [2016] eKLR declaring the mandatory death sentence unconstitutional has necessitated resentencing of all persons previously sentenced to the mandatory minimum and maximum sentences. 5. I have considered The Sentencing Policy Guidelines, 2016 and its application which is intended to promote transparency, consistency and fairness in sentencing (See Michael Kathewa Laichena & another v Republic [2018] eKLR). 6. Under the proviso to section 333(2) of the Criminal Procedure Code (Chapter 75 of the Laws of Kenya), the court is entitled to take into account the period the petitioner has spent in custody in determining the sentence. The court record shows that the Petitioners have served 14 years since the date of conviction. 7. The 1st Petitioner has undertaken training and obtained various certificates as a way of reformation. I have considered all the mitigating and aggravating factors. 8. ELISHA OMUKAYA MUYEYA alias Dorobo, the 1st Petitioner, not only robbed the complainant but also raped her. He is resentenced to serve 25 years from 13th July,2007 when he was convicted. The 5-year sentence on the count of rape shall run concurrently with this sentence.

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