- The Petitioner herein Jackson Mafabi Makoye filed the present petition seeking re- sentencing in respect of Bungoma Chief Magistrate’s Criminal Case No. 163 of 2000. His case is that he was convicted and sentenced to death. He later lodged an appeal at Bungoma High Court vide HCRA numbers 55/2006, 56/2006 and 60/2006 (consolidated) which was dismissed on 19.2.2009. It is further the petitioner’s case that this appeal to the Court of Appeal vide Cr. Appeal No. 298 of 2009 was dismissed on 25/3/2011. The Petitioner further averred that his death sentence was later commuted to life imprisonment through a presidential decree. The Petitioner finally averred that he has been in custody for about 24 years and that he has realized his mistakes and further that he has undergone various trainings in prison and thus he merits a release.
- Miss Mwaniki for the Respondent opposed the application. She submitted that this court is functus officio since it had already heard his appeal.
- I have considered the application and oral submissions. It is not in dispute that the Petitioner’s appeals to his court and the Court of Appeal were both dismissed. It is also not in dispute that the Petitioner’s sentence of death has since been commuted to life imprisonment following a presidential decree. The only issue for determination is whether the application has merit.
- The Petitioner has sought reliance in the case of Francis Karioko Muruatetu and Two Others -vs- Republic ( 2017) eKLR where the Supreme Court held that the mandatory nature of death sentence is unconstitutional and that courts now have discretion to consider mitigating circumstances from offenders before passing an appropriate sentence. The court further held that the courts can as well pass a sentence of death if the circumstances warrant it. The said court later issued some guidelines dated 6.7.2021 wherein it held that the decisional law made in 2017 is not an authority to declare minimum sentences as unconditional and that its application was limited to murder cases falling within its scope. Hence, the petitioner’s case being one of robbery with violence, the request for review of sentence on the basis for the Muruateti case ( supra) is without any merit. This court having determined the petitioner’s appeal became functus officio. The Petitioner has also sought reliance in the decision of Odunga J (as he then was) in Machakos Petition number E 017 of 2021 and maintains that he is entitled to a sentence review. I wish to point out that the decision aforesaid had been made by a court of concurrent jurisdiction yet it is the view of this court that it is bound by the Supreme Court’s decision in the Muruatetu 2 (Guidelines dated 6.7.2021). This court will abide by those guidelines and proceed to find that it lacks jurisdiction to determine the petitioner’s petition since this court is already functus officio.
- In view of the foregoing observations, it is my finding that the petition herein lacks merit. The same is dismissed.
Dated and delivered at Bungoma this 12 th day of April, 2024
D KEMEI
JUDGE
In the presence of :-
Jackson Mafabi Makoye………….. Petitioner
Miss Kibet……………………………...for Respondent
Kizito……………………………………… Court Assistant