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. The Applicant filed an appeal at the High Court at Mombasa through High Court Criminal Appeal No. 263 of 2008 and subsequently an appeal at the Malindi Court of Appeal through Criminal Appeal No. 493 of 2010 where the appeal was dismissed vide a judgment delivered on 16th May 2013.
2. That the said penalty of death was then commuted to life imprisonment by His Excellency the President.
3. The Applicant filed the application herein on 7th October 2023 pursuant to Articles 25(a) & (c) of the Constitution, Sections 216, 329, 333(2), 354, and 362 of the Criminal Procedure Code, Section 296(2) of the Penal Code, and the Sentencing Policy Guidelines. The Applicant also filed submissions on 3rd June 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.
4. The Applicant submitted that he has spent over 17 years in custody and has lived peacefully with his fellow inmates and prison authorities. That he was a first offender, he is remorseful and he has reformed.
5. The Applicant relied on the decision in the case of Peter Muindi & Another v Republic, Petition No. 98 of 2018, High Court Mombasa where it was held as follows: -
“Further, there have been instances where appellants faced with similar circumstances as the Petitioners were accorded the benefit of the least severe sentence during their appeals before the Court of Appeal. See the cases of Evanson Muiruri Gichane vs. Republic (2010) eKLR and Boniface Juma Khisa vs. Republic (2011) eKLR. It would be in line with the provisions of Article 27 to accord the Petitioners the same treatment. In according the Petitioners the same treatment this court would also be guaranteeing their right to life under Article 26 and their right to human dignity under Article 28 of the Constitution.”
6. 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.”
7. 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.”
8. The Sentence Review Report by Rosemary A. Nyong’a, Principal Probation Officer Mombasa County dated 10th June 2024 and filed on the same day was to the effect that the Applicant’s sentence may be reviewed to a definite custodial sentence. Further, according to the victim impact assessment, the victim who currently lives in Sweden with his family said that the incident happened a long time ago and since the other co-accused had been acquitted, he had no issued if the Applicant is pardoned too.
9. In consideration of the holding in Julius Kitsao Manyeso v Republic (2020) eKLR that life sentence is unconstitutional and in consideration of the Applicant’s mitigation, the Sentence Review Report and the Victim Impact Assessment, this court substitutes the life imprisonment sentence with 30 years imprisonment.
10. 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 30 years should therefore run from 6th October 2007 when the Applicant was arrested pursuant to Section 333(2) of the Criminal Procedure Code.
Dated, signed and delivered in Open Court/online through MS TEAMS,
This 13th day of June 2024
In the presence of: -
Etropia- Court Assistant
Mr. Ngiri for the Respondent
Applicant present in person
2. That the said penalty of death was then commuted to life imprisonment by His Excellency the President.
3. The Applicant filed the application herein on 7th October 2023 pursuant to Articles 25(a) & (c) of the Constitution, Sections 216, 329, 333(2), 354, and 362 of the Criminal Procedure Code, Section 296(2) of the Penal Code, and the Sentencing Policy Guidelines. The Applicant also filed submissions on 3rd June 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.
4. The Applicant submitted that he has spent over 17 years in custody and has lived peacefully with his fellow inmates and prison authorities. That he was a first offender, he is remorseful and he has reformed.
5. The Applicant relied on the decision in the case of Peter Muindi & Another v Republic, Petition No. 98 of 2018, High Court Mombasa where it was held as follows: -
“Further, there have been instances where appellants faced with similar circumstances as the Petitioners were accorded the benefit of the least severe sentence during their appeals before the Court of Appeal. See the cases of Evanson Muiruri Gichane vs. Republic (2010) eKLR and Boniface Juma Khisa vs. Republic (2011) eKLR. It would be in line with the provisions of Article 27 to accord the Petitioners the same treatment. In according the Petitioners the same treatment this court would also be guaranteeing their right to life under Article 26 and their right to human dignity under Article 28 of the Constitution.”
6. 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.”
7. 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.”
8. The Sentence Review Report by Rosemary A. Nyong’a, Principal Probation Officer Mombasa County dated 10th June 2024 and filed on the same day was to the effect that the Applicant’s sentence may be reviewed to a definite custodial sentence. Further, according to the victim impact assessment, the victim who currently lives in Sweden with his family said that the incident happened a long time ago and since the other co-accused had been acquitted, he had no issued if the Applicant is pardoned too.
9. In consideration of the holding in Julius Kitsao Manyeso v Republic (2020) eKLR that life sentence is unconstitutional and in consideration of the Applicant’s mitigation, the Sentence Review Report and the Victim Impact Assessment, this court substitutes the life imprisonment sentence with 30 years imprisonment.
10. 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 30 years should therefore run from 6th October 2007 when the Applicant was arrested pursuant to Section 333(2) of the Criminal Procedure Code.
Dated, signed and delivered in Open Court/online through MS TEAMS,
This 13th day of June 2024
In the presence of: -
Etropia- Court Assistant
Mr. Ngiri for the Respondent
Applicant present in person