A Kitui man has been handed a death sentence for being part of a gang that robbed a businessperson of Ksh1,100.
In a ruling that was rendered on Friday, July 28, Court of Appeal Judges Asike Makhandia, A.K. Murgor and Gachoka dismissed the case on grounds that it lacked merit.
The ruling is particularly significant as the Supreme Court has declared the mandatory death penalty unconstitutional.
In this case, the judges explained that the terms of his situation were well outlined in the Supreme Court's decision in Muruatetu 1 and the Muruatetu 2 guidelines, which strictly limited the application to the offense of murder.
"Since the appellant did not raise the issue of the constitutionality of the mandatory death sentence in respect of robbery with violence under section 296 (2) of the Penal Code in his appeal to the High Court, we are precluded from addressing that issue in this appeal.
"Consequently, the appeal on sentence also has no merit and is dismissed. In sum, the appeal on both conviction and sentence is not merited and is dismissed," the Judges stated in the ruling.
This is a second appeal arising from a judgment of the trial magistrates’ court dated September 7, 2010, where the appellant was charged with the offence of robbery with violence contrary to section 296 (2) of the Penal Code.
The man was accused, along with others, of jointly robbing a businessman in Kitui while being armed with dangerous weapons. They stole from the businessman Ksh 1,100, 20 kilograms of maize, 10 kilograms of cooking oil, and 2 jackets.
The culprits also took one radio cassette and one pair of bed sheets. The total value of the stolen items was Ksh 11,750
The man was additionally accused of perpetrating violence against the victim during the attack, which led to him sustaining minor injuries from the gang's beating.
The ruling is a major blow for the man who has challenged his conviction twice; at the High Court and at the Appellate Court.
The man was first sentenced at the Magistrate Court which found him guilty and convicted him of the offence and sentenced him to death.
Dissatisfied with the decision, the convict appealed at the High Court. However, in July 2014, the court dismissed the appeal and upheld both the conviction and sentence.
Aggrieved by the High Court’s decision, the convict filed an appeal at the Appellate Court on grounds that the lower courts failed to properly examine the presented evidence.
However, Court of Appeal Judges; Asike Makhandia, A.K. Murgor and Gachoka sealed his fate, condemning him to death for the act of robbery with violence.
The man will have one last chance to prove his innocence at the Supreme Court, that is, if he chooses to appeal his death sentence at the apex court.
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