High Court 4622 of 2021

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KISUMU CRIMINAL PETITION NO. 10 OF 2020 TITUS OWINO OTIENO ............................................. PETITIONER -VERSUSREPUBLIC...................................................................RESPONDENT RULING The Petitioner, TITUS OWINO OTIENO was convicted for the offence of Robbery with Violence contrary to Section 296 (2) of the Penal Code. He was then sentenced to suffer death as by law prescribed. 1. His appeal to the High Court was dismissed on 13th July 2010. 2. The Petitioner informed this Court that his appeal to the Court of Appeal was also dismissed. 3. He has now invoked the decision by the Supreme Court in the case of FRANCIS KARIOKO MURUATETU & ANOTHER Vs REPUBLIC PETITION NO. 15 OF 2015, and has asked the court to proceed to re-sentence him. 4. The Supreme Court declared the mandatory nature of the death penalty, to be unconstitutional. 5. I have perused the record of the proceedings before the trial court, and noted that after giving to the Petitoner an opportunity for mitigation, the learned trial magistrate said; “Noted. Accused is a first offender and says as such. However, the offence carries a mandatory sence of death, which ties my hands. Sentence Death.” 6. In a nutshell, the trial court believed that regardless of the circumstances in which the particular offence was committed, and notwithstanding the Petitioner’s mitigation, the death sentence was mandatory. 7. It is that notion of a mandatory sentence that the Supreme Court had declared unconstitutional. It therefore follows that the Petitioner was now entitled to being re-sentenced. 8. I have noted that the Complainant was violently robbed of his bicycle. He was hit on the back of his head, whilst he was riding his bicycle. 9. The blow was so massive that the Complainant lost consciousness for about 20 minutes. As a result of the injuries he sustained, the Complainant was admitted in hospital for a whole week. 10. Whilst the Complainant was robbed at about 9.30p.m on 7 th October 2008, the Petitioner was arrested at about 10.00a.m on 8 th October 2008, after being spotted riding the Complainant’s bicycle. In effect, the Petitioner did not care at all about the injuries inflicted upon the Complainant. If anything, the Petitioner was “enjoying” riding the bicycle which had been obtained through a violent robbery, on the previous night.

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