A Court of Appeal in Kisumu, on Monday, June 12, dismissed an appeal filed by a convict serving a death sentence for stealing Nokia 3110, among other valuables worth Ksh46,000.
The three-Judge bench threw out the appeal by Cyrus Kavai Onzere, noting that the Magistrate Court rightfully convicted him, with the High Court upholding the ruling.
However, Justices Joel Ngugi, Wanjiru Karanja and Francis Tuiyott asked Supreme Court to review the peculiar nature of the Onzere case in reference to the famous Muruatetu 2 case.
“Based on the foregoing, we have no option but to dismiss this appeal in the circumstances. We find it necessary to add that we find this outcome, predicated as it is upon Muruatetu II, to be unfair and disproportionate, in light of the rationale by the Supreme Court of Kenya for declaring the mandatory death sentence unconstitutional in Muruatetu I.
“There is a need for urgent intervention in this regard by way of the necessary legal reforms, or determination by the Supreme Court of Kenya regarding the constitutional validity of the mandatory death penalty in such cases as this,” read part of the ruling by the Court of Appeal.
The Judges noted that the cases of Muruatetu may not directly apply to Onzere’s appeal case. Still, legal counsels could exploit the gaps and seek a possible review at the Supreme Court.
While dismissing the appeal, the Judges unanimously agreed on their jurisdictions and the constitutional matters, including the conduct of the preceding judgments.
“We are also mindful of the limits of the exercise of our appellate jurisdiction under Article 164(3) of the Constitution and Section 3(1) of the Appellate Jurisdiction Act.
“It is thus our view that the remedy for the Appellants with regards to the issue they raise and arguments they have put forward on the legality and constitutionality of the mandatory death sentence imposed on them does not lie with this court,” read part of the ruling by the Court of Appeal.
Onzere was, in 2008, charged before the Senior Resident Magistrate’s Court in Vihiga County for committing an offence of robbery with violence.
The Office of the Director of Public Prosecution (ODPP) accused Onzere and his accomplice of staging a robbery on May 14, 2008, while armed with pangas. The two made away with two Nokia mobile phones make, 3110 and 1110, from the complainant.
The two were also accused of stealing a CD player, one radio cassette, one briefcase, 10 CD compacts, five long trousers, four shirts, three caps, one speaker, an amplifier, a driving license and a leather waist belt, all valued at Ksh46,000.
Onzere and his accomplice also wounded the victim at his home in Mudete village, Vihiga County .
The trial magistrate convicted Onzere of the main count and sentenced him to death.
The convict, however, was aggrieved by the lower court’s decision and filed an appeal at the High Court.
Unfortunately, the High Court dismissed the appeal and upheld the conviction in a December 7, 2011 judgment.
Dissatisfied with the decision of the High Court, Onzere lodged a case at the Court of Appeal on November 17, 2022, through his advocate, raising only one ground of appeal.
Onzere’s appeal was argued by way of written submissions by both parties in which he argued that during the course of the trial, the appellant’s age was never established, and the only attempt to establish the same was at the mitigation stage when the appellant stated that he had not yet obtained an identification card.
“He further argued that even though the trial magistrate considered the appellant’s mitigation that he was still very young, the lower court held that its hands were tied as there is only one mandatory sentence of death provided for the offence of robbery with violence.
“Thus, it could not give a less severe sentence. He submitted that despite the penalty being a death sentence, courts now have discretion to consider the circumstances of each case and apply the appropriate sentence in accordance with the law,” read part of the judgment by Court of Appeal Judges.
