1. The applicant herein and Johnson Mwita Ikwabe were jointly charged with the offence of robbery with violence contrary to section 296 (2) of the penal code in the magistrate court criminal case number 857 of 2009. The particulars of the charge were that on the 5th and 6th day of June 2009 at about midnight in Kitengela township in Kajiado District, within Rift Valley Province, while armed with dangerous weapons namely a dagger robbed Boniface Muema Mutie of Bajaj Boxer Motor Cycle Reg. No KBG 877Z, a Nokia 1110 and cash 900 all valued at Ksh 81,700 and at or immediately before or immediately after the time of such robbery, injured the said BONIFACE MUEMA MUTIE.
2. Upon the hearing and conclusion of the case before the trial court, the two accused were found guilty and convicted to suffer death as by law provided. An appeal was filed in the High Court stationed in Machakos being case No 136 of 2018. And in a judgment delivered on 27th January 2020, the court Odunga J as he then was in allowing the appeal made the following order;
“ I therefore allow the petition, quash the death sentence imposed on the applicant in Kajiado Resident Magistrates court in criminal case number 857 of 2009, set aside this courts decision in criminal appeals Nos 103 and 104 of 2021 to the extent that it confirmed the death sentence meted out on the petitioner and direct that the matter be remitted to the trial court for mitigation and re-sentencing.”
3. The matter was according remitted to the magistrate court for a re-sentencing. In a reasoned ruling the court applying the guidelines for resentencing in Lawrence Nkonge Mwiandi vs republic Nakuru High Court Misc . case number 72 of 2018 and Michael Kathewa Laichena & another vs A.G Meru High Court Criminal Petition number 19 of 2018 sentenced Johnstone Mwita Ikwabe the applicant co- accused to 14 years imprisonment being the minimum sentence for the offence of robbery with violence under section 296 (1) of the penal code. The resentencing court took into account the fact that the accused had cumulatively served 12 years in prison and sentenced him to 2years.
4. The applicant in this matter had been in lawful custody since 9th September 2009 when he was first arraigned in court a period close to 17 years. His co- accused served the two years sentence imposed by the re-sentencing court on 12th December 2020. The need for parity of sentence for accused persons is firmly rooted in the principle of fairness and justice within the criminal justice system. It ensures that offenders who commit similar offence under similar circumstances receive similar sentences and thus prevent unwarranted disparities and promoting public confidence in our judicial system.
5. I do not see any reason and justification for the applicant herein to continue serving a life imprisonment while his co- accused had benefited from an order lawfully issued by the court under similar circumstance.
6. I therefore make an order that the applicant Thomas Kariuki Mburu, taking into account the period he had been in prison serving sentence be released forthwith from prison custody unless otherwise lawfully held.
2. Upon the hearing and conclusion of the case before the trial court, the two accused were found guilty and convicted to suffer death as by law provided. An appeal was filed in the High Court stationed in Machakos being case No 136 of 2018. And in a judgment delivered on 27th January 2020, the court Odunga J as he then was in allowing the appeal made the following order;
“ I therefore allow the petition, quash the death sentence imposed on the applicant in Kajiado Resident Magistrates court in criminal case number 857 of 2009, set aside this courts decision in criminal appeals Nos 103 and 104 of 2021 to the extent that it confirmed the death sentence meted out on the petitioner and direct that the matter be remitted to the trial court for mitigation and re-sentencing.”
3. The matter was according remitted to the magistrate court for a re-sentencing. In a reasoned ruling the court applying the guidelines for resentencing in Lawrence Nkonge Mwiandi vs republic Nakuru High Court Misc . case number 72 of 2018 and Michael Kathewa Laichena & another vs A.G Meru High Court Criminal Petition number 19 of 2018 sentenced Johnstone Mwita Ikwabe the applicant co- accused to 14 years imprisonment being the minimum sentence for the offence of robbery with violence under section 296 (1) of the penal code. The resentencing court took into account the fact that the accused had cumulatively served 12 years in prison and sentenced him to 2years.
4. The applicant in this matter had been in lawful custody since 9th September 2009 when he was first arraigned in court a period close to 17 years. His co- accused served the two years sentence imposed by the re-sentencing court on 12th December 2020. The need for parity of sentence for accused persons is firmly rooted in the principle of fairness and justice within the criminal justice system. It ensures that offenders who commit similar offence under similar circumstances receive similar sentences and thus prevent unwarranted disparities and promoting public confidence in our judicial system.
5. I do not see any reason and justification for the applicant herein to continue serving a life imprisonment while his co- accused had benefited from an order lawfully issued by the court under similar circumstance.
6. I therefore make an order that the applicant Thomas Kariuki Mburu, taking into account the period he had been in prison serving sentence be released forthwith from prison custody unless otherwise lawfully held.