RULING
1. This is an application for sentence review by the 1st and 2nd applicants through Notice of Motion dated 2nd day of March 2025 and a supporting affidavit sworn on the 2nd day of March 2025. In the said Notice of Motion and the attached supporting affidavit, they seek this honourable court to review the decision of the learned magistrate made by Hon. J.N. Githaiga in criminal case No. 511 of 2005 at Taveta.
2. On the 17th day of March 2025, both the applicants filed written submissions on re-sentencing, where they gave their prayers. The prayers are that.
3. The prayers are that their application for resentencing should be allowed, and the death sentence be substituted with a lenient sentence.
4. Further, the sentence should be calculated from the date of plea taking.
5. Both the applicants were found guilty and convicted for the offence of Robbery with violence contrary to section 296(2) of the penal code. They were sentenced to death by the Chief Magistrate's Court in Taveta.
6. The sentence was later commuted to life imprisonment by His Excellency the President.
7. The Applicants appealed in the High Court at Mombasa in Criminal Appeal NO. 210 & 211 of 2005, but the appeal was dismissed.
8. The applicants base their applications on the following provisions of the law: Article 27 (1), 50 (2) of the Constitution of Kenya, and Section 333 (2) of the Criminal Procedure Code. They also relied on HCCR MISC APPL/E177/2023 SHABAN SALIM RAMADHAN v REPUBLIC as a case in which the applicant, who was convicted on the same charge of Robbery with violence, and his application for resentencing was allowed.
9. After careful consideration of the applicant’s grounds supporting the application, the main issue for determination is whether the applicant should be resentenced to a life imprisonment sentence with a determinate term.
10. The High Court has a supervisory jurisdiction over the subordinate courts, which includes the magistrate court that passed the conviction. This power is given to the High Court by Articles 165 (6) and (7) of the Constitution.
11. The definition and legality of life sentence had remained unsettled but this is no more following the recent decision Apex court in REPUBLIC AND EVANS NYAMARI AYAKO.
12. I also note that the matter arose from Mariakani Law Courts and the application ought not to have been filled in Mombasa High Courts encourages forum shopping.
13. A CCORDINGLY I find that the matter is improperly before me and the application in dismissed for lack of both jurisdiction and merit.
14. It is so ordered.
DATED SIGNED AND DELIVERED AT MOMBASA THIS 15TH DAY OF MAY 2025
WENDY KAGENDO
JUDGE
DELIVERED IN THE PRESENCE OF;
THE TWO APPLICANTS
MR NGIRI FOR THE STATE
BEBORA COURT ASSISTANT
1. This is an application for sentence review by the 1st and 2nd applicants through Notice of Motion dated 2nd day of March 2025 and a supporting affidavit sworn on the 2nd day of March 2025. In the said Notice of Motion and the attached supporting affidavit, they seek this honourable court to review the decision of the learned magistrate made by Hon. J.N. Githaiga in criminal case No. 511 of 2005 at Taveta.
2. On the 17th day of March 2025, both the applicants filed written submissions on re-sentencing, where they gave their prayers. The prayers are that.
3. The prayers are that their application for resentencing should be allowed, and the death sentence be substituted with a lenient sentence.
4. Further, the sentence should be calculated from the date of plea taking.
5. Both the applicants were found guilty and convicted for the offence of Robbery with violence contrary to section 296(2) of the penal code. They were sentenced to death by the Chief Magistrate's Court in Taveta.
6. The sentence was later commuted to life imprisonment by His Excellency the President.
7. The Applicants appealed in the High Court at Mombasa in Criminal Appeal NO. 210 & 211 of 2005, but the appeal was dismissed.
8. The applicants base their applications on the following provisions of the law: Article 27 (1), 50 (2) of the Constitution of Kenya, and Section 333 (2) of the Criminal Procedure Code. They also relied on HCCR MISC APPL/E177/2023 SHABAN SALIM RAMADHAN v REPUBLIC as a case in which the applicant, who was convicted on the same charge of Robbery with violence, and his application for resentencing was allowed.
9. After careful consideration of the applicant’s grounds supporting the application, the main issue for determination is whether the applicant should be resentenced to a life imprisonment sentence with a determinate term.
10. The High Court has a supervisory jurisdiction over the subordinate courts, which includes the magistrate court that passed the conviction. This power is given to the High Court by Articles 165 (6) and (7) of the Constitution.
11. The definition and legality of life sentence had remained unsettled but this is no more following the recent decision Apex court in REPUBLIC AND EVANS NYAMARI AYAKO.
12. I also note that the matter arose from Mariakani Law Courts and the application ought not to have been filled in Mombasa High Courts encourages forum shopping.
13. A CCORDINGLY I find that the matter is improperly before me and the application in dismissed for lack of both jurisdiction and merit.
14. It is so ordered.
DATED SIGNED AND DELIVERED AT MOMBASA THIS 15TH DAY OF MAY 2025
WENDY KAGENDO
JUDGE
DELIVERED IN THE PRESENCE OF;
THE TWO APPLICANTS
MR NGIRI FOR THE STATE
BEBORA COURT ASSISTANT