1. The Applicant was charged, convicted and sentenced to suffer death for the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code Cap 63 laws of Kenya in Mombasa High Court Criminal Case No. 1 of 2016. The Applicant filed an appeal at the Court of Appeal Mombasa but he has never been issued with proceedings and the appeal has not been pursued to date. That the said penalty of death was then commuted to life imprisonment by His Excellency the President.
2. The Applicant filed the application herein on 7th December 2023 pursuant to Articles 25(a) & (c) of the Constitution, Sections 216, 329, 333(2), 354 and 362 of the Criminal Procedure Code, Section 203 and 204 of the Penal Code, and the Sentencing Policy Guidelines. The Applicant also filed submissions on 23rd May 2024 seeking for a review of his sentence and asked that the time spent in custody can be considered pursuant to Section 333(2) of the Criminal Procedure Code.
3. The Applicant submitted that he was arrested in 2003 and has spent over 30 years in custody. He said that he has lived peacefully with his fellow inmates and prison authorities, that he has never been charged at the prison facility with any misconduct, that he has reformed and remorseful for the incident, and that he was a first offender.
4. The Applicant relied on Article 50 (2) (p) of the Constitution which provides as follows: -
(2) Every accused person has the right to a fair trial which includes the right: -
(p) to the benefit of the least severe of the prescribed punishments for an offence, if the prescribed punishment for the offence has been changed between the time that the offence was committed and the time of sentencing
5. The Applicant also relied on the case in S v Jansen (1999) 20 SACR 368 (C) at 373 (G)-(H) where Davis, J. stated: -
“mandatory minimum sentences disregard all individual characteristics and each case is treated in a factual vacuum, leaving no room for an examination of the prospect of rehabilitation and of the incarceration method to be adopted. Such a system can result in a gross disregard of the right to dignity of the accused.”
6. The Applicant further relied on the case in Akimu Azed Wakoli v Republic, Petition No. 16 of 2018 at Siaya High Court where Aburili, J. held as follows: -
“…I hereby resentence AKIMU AZED WAKOLI the petitioner herein to a prison term of 15 years to be calculated from the date of his arrest until his release from prison custody. This is in accordance with the proviso to Section 333(2) of the Criminal Procedure Code which stipulates that where a person has been in custody prior to sentence the sentence shall take into account of the period spent in custody.”
7. In consideration of the holding in Julius Kitsao Manyeso v Republic (2020) eKLR that life sentence is unconstitutional, this court hereby substitutes the life imprisonment sentence with 30 years imprisonment in each count to run consecutively with effect from 16th July 2019 when he was convicted. This court does not have records of the trial court to confirm that when he was arraigned in court on 20th January 2016 he was not released on bond.
Dated, signed and delivered in Open Court/online through MS TEAMS,
This 20th day of June 2024
In the presence of: -
Etropia- Court Assistant
Ms. Maina for the Respondent
Applicant present in person
2. The Applicant filed the application herein on 7th December 2023 pursuant to Articles 25(a) & (c) of the Constitution, Sections 216, 329, 333(2), 354 and 362 of the Criminal Procedure Code, Section 203 and 204 of the Penal Code, and the Sentencing Policy Guidelines. The Applicant also filed submissions on 23rd May 2024 seeking for a review of his sentence and asked that the time spent in custody can be considered pursuant to Section 333(2) of the Criminal Procedure Code.
3. The Applicant submitted that he was arrested in 2003 and has spent over 30 years in custody. He said that he has lived peacefully with his fellow inmates and prison authorities, that he has never been charged at the prison facility with any misconduct, that he has reformed and remorseful for the incident, and that he was a first offender.
4. The Applicant relied on Article 50 (2) (p) of the Constitution which provides as follows: -
(2) Every accused person has the right to a fair trial which includes the right: -
(p) to the benefit of the least severe of the prescribed punishments for an offence, if the prescribed punishment for the offence has been changed between the time that the offence was committed and the time of sentencing
5. The Applicant also relied on the case in S v Jansen (1999) 20 SACR 368 (C) at 373 (G)-(H) where Davis, J. stated: -
“mandatory minimum sentences disregard all individual characteristics and each case is treated in a factual vacuum, leaving no room for an examination of the prospect of rehabilitation and of the incarceration method to be adopted. Such a system can result in a gross disregard of the right to dignity of the accused.”
6. The Applicant further relied on the case in Akimu Azed Wakoli v Republic, Petition No. 16 of 2018 at Siaya High Court where Aburili, J. held as follows: -
“…I hereby resentence AKIMU AZED WAKOLI the petitioner herein to a prison term of 15 years to be calculated from the date of his arrest until his release from prison custody. This is in accordance with the proviso to Section 333(2) of the Criminal Procedure Code which stipulates that where a person has been in custody prior to sentence the sentence shall take into account of the period spent in custody.”
7. In consideration of the holding in Julius Kitsao Manyeso v Republic (2020) eKLR that life sentence is unconstitutional, this court hereby substitutes the life imprisonment sentence with 30 years imprisonment in each count to run consecutively with effect from 16th July 2019 when he was convicted. This court does not have records of the trial court to confirm that when he was arraigned in court on 20th January 2016 he was not released on bond.
Dated, signed and delivered in Open Court/online through MS TEAMS,
This 20th day of June 2024
In the presence of: -
Etropia- Court Assistant
Ms. Maina for the Respondent
Applicant present in person