Otieno v Republic (Criminal Petition E006 of 2023) [2025] KEHC 8615 (KLR) (20 June 2025) (Ruling) Neutral citation: [2025] KEHC 8615 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT BUSIA CRIMINAL PETITION E006 OF 2023 WM MUSYOKA, J JUNE 20, 2025 BETWEEN RAPHAEL OCHIENG OTIENO .......................................................... PETITIONER AND REPUBLIC ............................................................................................ RESPONDENT RULING 1. The trial records, whether original or copies, relating to the matter herein were not availed, despite calls for them from the relevant registry. I keep wondering where criminal trial records are taken after completion of trials. There are protocols in place on how trial records, for finalised criminal matters, are to be stored, and when those records are to be destroyed. All indications are that those protocols are not being adhered to. Proper records are not being kept, hence up to fifty files or so cannot be accounted for, and most of the post-conviction applications and petitions, related to them, that are pending, will have to be determined without the benefit of the said trial records being made available to me. 2. The petitioner had been convicted in Busia CMCCRC No. 661 of 2002, of robbery with violence, and was sentenced to death. That death sentence was subsequently commuted, by the President of the Republic of Kenya, to life imprisonment. 3. The petitioner decries the mandatory death sentence, and the subsequent life imprisonment to which it was commuted. His Motion, of 8th August 2023, seeks review of the sentence imposed in Busia CMCCRC No. 661 of 2002. 4. In his own words, the petitioner has averred that the death sentence, imposed by the trial court, was commuted by the President, to life imprisonment. The death sentence is, therefore, not available for review, in the manner the petitioner envisages in the Motion and petition herein. 5. Secondly, commutation of the sentence, from death to life imprisonment, was by an act of the Executive, not the Judiciary. The court cannot now purport to review, in these proceedings, an https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/8615/eng@2025-06-20 1
page 1 of 2
Executive act, which was not a judicial act in Busia CMCCRC No. 661 of 2002. The petitioner should, perhaps, take advance of the measures under the Executive, such as remission and the prerogative of mercy 6. Thirdly, by dint of Francis Karioko Muruatetu & another v. Republic; Katiba Institute & 5 others (Amicus Curiae) [2021] eKLR (Koome CJ&P, Mwilu DCJ&VP, Ibrahim, Wanjala, Njoki, Lenaola & Ouko, SCJJ), and the subsequent decisions in Republic v. Manyeso [2025] KESC 16 (KLR) (Mwilu, DCJ&VP, Ibrahim, Wanjala, Ndung’u & Lenaola, SCJJ) and Republic v. Ayako [2025] KESC 20 (KLR)(Mwilu, DCJ&VP, Ibrahim, Wanjala, Ndung’u & Lenaola, SCJJ), the mandatory death sentences in the statutes, except for murder, remain valid and constitutional. Consequently, the review sought cannot be available. 7. Fourthly, regarding life imprisonment, Republic v. Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) [2024] KESC 34 (KLR) (Koome, CJ&P, Ibrahim, Wanjala, Ndung’u & Lenaola, SCJJ), Republic v. Manyeso [2025] KESC 16 (KLR) (Mwilu, DCJ&VP, Ibrahim, Wanjala, Ndung’u & Lenaola, SCJJ) and Republic v. Ayako [2025] KESC 20 (KLR)(Mwilu, DCJ&VP, Ibrahim, Wanjala, Ndung’u & Lenaola, SCJJ)have declared it to be a lawful sentence. 8. Consequently, I find no basis, at all, upon which I can review the sentence that was imposed in Busia CMCCRC No. 661 of 2002. The petition herein is, accordingly, not well founded, and I hereby dismiss it. 9. For the purpose of information, with respect to files from the trial court not being availed to the High Court, let a copy of this ruling be made available to the Chief Magistrate. DELIVERED, DATED AND SIGNED IN OPEN COURT, AT BUSIA, ON THIS 20TH DAY OF JUNE 2025. W MUSYOKA JUDGE Mr. Arthur Etyang, Court Assistant. Mr. Raphael Ochieng Otieno, the petitioner, in person. Advocates Mr. Onanda, instructed by the Director of Public Prosecutions, for the respondent. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/8615/eng@2025-06-20 2
page 2 of 2