The High Court has substituted a death penalty with a 19 year jail term for a man convicted of carjacking and robbing passengers in a Kakamega-Nairobi bound bus.
Judge Jesse Njagi said the sentence should commensurate with the moral blame worthy of the offender.
Kelvin Otieno Muleshi was charged with three counts of robbery with violence where he was sentenced to death on one.
Otieno was convicted alongside Geoffrey Kituyi, Nelson Bunyasi, John Oduori and Collins Mudavadi for robbing passengers on the night of November 9, 2009.
The five were said to have been armed with a toy pistol, metallic rods which they used to cause violence on the passengers before making way with their valuables.
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Fredrick Kiongera, a lecturer of Masinde Muliro University of Science and Technology (MMUST) told the court that that the bus had left Nairobi at around 9pm of the fateful night and was seated next to Otieno.
The bus christened Ugwe had 62 passengers aboard at takeoff in Nairobi though some passengers alighted at Nakuru, Kericho and Kisumu towns.
Trouble started when they approached Stand Kisa bus stop near Chavakali, Vihiga County when one of the attackers approached the driver and commanded him to switch off the lights.
Joseph Njoroge who was at the steering the driver obliged after he was threatened with the toy pistol after which the attackers roughed up his co-driver.
One of the attackers remained with the driver and ordered him to drive nonstop u to Mukumu if he valued his life and that of his family.
The other assailants proceeded to the passengers and ordered them to surrender their valuables, money and mobile phones and beating those who were hesitant to surrender.
The assailants then alighted at Mukumu, Shinyalu sub-county in Kakamega telling the passengers to report to the police if they so wished.
The police estimated the items stolen at Sh15,000 for the passengers who reported the incident.
The five were arrested the following day after officers from Mudete Police Station were informed of a suspicious saloon car where after a search, the police recovered a bag containing mobile phones, Identity Cards which were identified by the complainants.
They were charged with 12 counts of robbery with violence but were found guilty of three charges and sentenced to face the hangman noose.
Their subsequent appeals at the High Court and the Court of Appeal were dismissed and sentences upheld saying all elements of robbery were proven as the four were positively identified as the people who had boarded the vehicle until they unleashed terror on the passenger.
With the Supreme Court declaration that death penalty was unconstitutional, Otieno petitioned the State for a resentencing saying death penalty is inconsistent with the Constitution.
He sought to be released saying the period served is enough sentence since he is remorseful and has learnt his lessons.
The petitioner told the court he was convicted on October 28, 2010 and that his wife had died while he was still in jail leaving their three children to stay with their relatives.
Justice Njagi held that the 10 years period he has served is not sufficient for the offense committed although he was a first time offender.
“I am of the considered view the death sentence is not warranted and is hereby set aside. I resentence him to 19 years on each of the three counts commencing on the date of sentencing by the trial court,” said Justice Njagi and ordered the sentences to run concurrently.