A man sentenced to death after the court found him guilty of robbery with violence is happy for now.
This is after Machakos high court on January 29, 2024 set aside the death sentence dealt to him .
Josphat Machiwa Okoko will now serve 20 years imprisonment from the date he was sentenced by the trial court.
“I therefore exercise my discretion and set aside the death sentence imposed on the petitioner herein vide the judgment dated 4th August 2007 in Makindu PMCR No 421 of 2009 and instead substitute the sentence imposed for the applicant to serve a term of twenty (20) years imprisonment from the date he was sentenced by the trial court.” Justice Francis Rayola Olol ruled.
Okoko had initially appealed to the high court in Machakos against conviction and sentence but the appeal was dismissed on April 4, 2012.
Later, on December 2, 2019, he withdrew the appeal to the Court of Appeal, opting for resentencing due to emerging jurisprudence, particularly influenced by the Francis Karioko Muruatetu case.
The case of Francis Muruatetu and another convict made headlines in December 2017 when the Supreme Court declared that the mandatory death penalty for murder, imposed in the case of the two men was unconstitutional.
However, the court did not invalidate the death penalty itself, merely the requirement that it had to be imposed in any case where the accused was convicted of murder.
The prosecution did not oppose the application, acknowledging the court’s authority to review the sentence.
The accused also pointed out that his co-accused Patrick Muinde had secured a reduced sentence of 20 years in Makueni after appealing.
While supporting the possibility of the resentencing, the convict urged the court to consider a high sentence of 30 years .
However justice Rayola Olol pointed out that it was unconstitutional to treat individuals convicted for the same offence differently
“In law persons convicted for the same offence should not be treated differently when it comes to sentencing, unless good reason exists why that should be so.”
Furthermore, he noted that the initial sentence was unduly harsh and excessive
“Judge George Dulu noted in Makueni Criminal Revision Petition No 2 0f 2020, Patrick Muinde Vs Republic when he re sentenced the applicant herein co accused, that nobody was injured during the robbery and luckily most of the items stolen were recovered on the same night at Emali town.”
The applicant together with his co-accused Patrick Muinde were charged and convicted of the offence of robbery with violence at Makindu.
They were found guilty and sentenced to suffer death.
On January 30, 2024, a lobby group sued the Director of Public Prosecutions (DPP) and Judiciary accusing them of sustaining charges of robbery with violence declared unconstitutional by the High Court eight years ago.
In the petition lodged before Milimani high court, the Human Rights Lobby Group Katiba Institute claims the DPP and Judiciary refuse to revoke these charges, affecting individuals’ rights and freedoms.
“The respondents’ wholesale abandonment of their core constitutional duties and utter indifference to all Kenyans’ fundamental rights and freedoms continues. Each day, people are arrested, charged, arraigned, detained, tried, convicted, and sentenced based on these ghost crimes,” reads the court papers.
Katiba Institute demands the release of over 20,000 suspects arrested and convicted for the non-existing offences since their unconstitutional declaration in 2016.
In September 2016, the High Court declared sections of the Penal Code penalizing robbery with violence and attempted robbery with violence as unconstitutional.
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