A man who had been sentenced to death yesterday walked free after convincing the court that there was a contradiction in the law.
Felix Ochieng Omolo was sentenced to death by a magistrate’s court in July 2008 for attempted robbery with violence.
Omolo appealed the sentence in both the High Court and the Court of Appeal and lost. His death sentence was later commuted to life.
Omolo launched a fresh appeal against the life term, personally arguing his case before the High Court in Mombasa.
In his appeal, Omolo argued that section 297(2) of the penal code under which he was charged and sentenced contradicted section 389 of the penal code.
He argued that while section 297(2) provided for the death sentence for an offence of robbery with violence, section 389 provided a sentence of seven years for attempt to commit a felony.
He argued that since his constitutional right to life was provided in the law, he ought to have benefited from section 389 of the penal code, which give a lesser sentence.
“I should benefit from the lesser sentence prescribed by section 389 of the penal code which says any person convicted on this section of the law should be sentenced to a period less than seven years,” argued Omolo.
As such, he said, he was sentenced on a law that contradicted another law, and therefore his constitutional rights had been violated.
Omolo walked free after Justice Erick Ogola agreed that section 297(2) of the penal code under which he was sentenced contradicted section 389 when it came to sentencing for an offence of attempted robbery with violence.
“That an order be and is hereby made that there is a conflict between section 297(2) and 389 of the penal code as to the sentence of attempted robbery with violence and the conflict violates the petitioner’s rights in the Constitution,” ruled Justice Ogola.
The State had opposed Omolo’s fresh appeal arguing there was no new compelling evidence to warrant revisiting the case and that the case was conducted before the new Constitution.
The State said that granting the appeal would upset the hierarchy of the courts because the petitioner was properly tried, convicted and sentenced.
