1. The Applicant was charged, convicted and sentenced to suffer death for the offence of robbery with violence contrary to Section 296(2) of the Penal Code Cap 63 laws of Kenya through a judgment delivered on 22nd February 2007 by Hon. T. Mwangi (SRM).
2. The Applicant then appealed in Mombasa High Court Criminal Appeal No. 34 of 2007 and subsequently to Mombasa Court of Appeal Criminal Appeal No. 178 of 2012 vide judgment delivered on 6th November 2014 where the appeal was dismissed, conviction and sentence confirmed.
3. That the said penalty of death was commuted to life imprisonment in 2009 which the applicant is currently serving.
4. Vide an application filed on 7th December 2023 pursuant to Section 397 of the Criminal Procedure Code as well as submissions filed on the same date, the Applicant now seeks for a review of his sentence.
5. The Applicant submitted that he was aged 33 years at the time of his committal and he is now elderly aged 53 years and suffering from chronic hypertension, that he is diabetic and living positively for the last 25 years. He prayed that this court finds that the period of 20 years spent in custody is sufficient to set him free.
6. That during the Applicant’s stay in custody, he was the secondary school head teaching physics and was awarded a certificate of appreciation by the administration. That he also undertook other vocational trainings such as paralegalism trained by Kituo cha Sheria, skills enhancement for primary school teachers, National AIDS and STI Control Program, T.O.T. on peer educators, SHUGA Training, and Red Cross training on peer education.
7. On mitigation, the Applicant relied on decisions of the court in the cases of Kurera Chilo Kuto v Republic, Mombasa HCCR APP No. 163 of 2016 and Michael Kathewa Laichena & Another v Republic, Meru High Court Petition No. 19 of 2017 where there was resentencing of 10 years and 15 years respectively.
8. In consideration of the holding in Julius Kitsao Manyeso v Republic (2020) eKLR that life sentence is unconstitutional, the said life sentence is substituted with 35 years imprisonment.
9. The Applicant was charged with a capital offence prior to the promulgation of the Constitution. He was in remand throughout his trial and his sentence ought to have factored in the remand period. The sentence of 35 years is therefore to factor in the 20 years that the Applicant has been in custody pursuant to Section 333(2) of the Criminal Procedure Code. Upon completion of the remainder of the sentence, the Applicant to remain under probation supervision for another one year to prevent relapse and assist with reintegration into society.
Dated, signed and delivered in Open Court/online through MS TEAMS,
This 7th day of July 2024
2. The Applicant then appealed in Mombasa High Court Criminal Appeal No. 34 of 2007 and subsequently to Mombasa Court of Appeal Criminal Appeal No. 178 of 2012 vide judgment delivered on 6th November 2014 where the appeal was dismissed, conviction and sentence confirmed.
3. That the said penalty of death was commuted to life imprisonment in 2009 which the applicant is currently serving.
4. Vide an application filed on 7th December 2023 pursuant to Section 397 of the Criminal Procedure Code as well as submissions filed on the same date, the Applicant now seeks for a review of his sentence.
5. The Applicant submitted that he was aged 33 years at the time of his committal and he is now elderly aged 53 years and suffering from chronic hypertension, that he is diabetic and living positively for the last 25 years. He prayed that this court finds that the period of 20 years spent in custody is sufficient to set him free.
6. That during the Applicant’s stay in custody, he was the secondary school head teaching physics and was awarded a certificate of appreciation by the administration. That he also undertook other vocational trainings such as paralegalism trained by Kituo cha Sheria, skills enhancement for primary school teachers, National AIDS and STI Control Program, T.O.T. on peer educators, SHUGA Training, and Red Cross training on peer education.
7. On mitigation, the Applicant relied on decisions of the court in the cases of Kurera Chilo Kuto v Republic, Mombasa HCCR APP No. 163 of 2016 and Michael Kathewa Laichena & Another v Republic, Meru High Court Petition No. 19 of 2017 where there was resentencing of 10 years and 15 years respectively.
8. In consideration of the holding in Julius Kitsao Manyeso v Republic (2020) eKLR that life sentence is unconstitutional, the said life sentence is substituted with 35 years imprisonment.
9. The Applicant was charged with a capital offence prior to the promulgation of the Constitution. He was in remand throughout his trial and his sentence ought to have factored in the remand period. The sentence of 35 years is therefore to factor in the 20 years that the Applicant has been in custody pursuant to Section 333(2) of the Criminal Procedure Code. Upon completion of the remainder of the sentence, the Applicant to remain under probation supervision for another one year to prevent relapse and assist with reintegration into society.
Dated, signed and delivered in Open Court/online through MS TEAMS,
This 7th day of July 2024