[2024] KEHC 4088 (KLR)
The court found that the life sentence imposed on the applicant was unconstitutional, referencing the Court of Appeal's decision in Julius Kitsao Manyeso and the Supreme Court's guidance in Muruatetu. Given the applicant's mitigation, time already served, and the recommendation from the Sentence Review Report for...
Source-derived case information.
- Citation
- [2024] KEHC 4088 (KLR)
- Parties
- Applicant: Kyalo Nguthu Bao; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E105 of 2023
- Procedural Posture
- Miscellaneous Criminal Application / Resentencing Application After Conviction and Withdrawal of Appeal
- Outcome
- Application for resentencing allowed; life sentence set aside and substituted with 20 years imprisonment from date of arrest.
- Judges
- A. Ong’injo
- Legal Topics
- Resentencing, Robbery With Violence, Mitigation, Life Sentence, Supreme Court Guidelines
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kyalo Nguthu Bao
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Resentencing Application After Conviction and Withdrawal of Appeal
Legal Issues
- 1 Whether the applicant is entitled to resentencing following the withdrawal of his appeal due to missing lower court proceedings.
- 2 Whether the life sentence imposed on the applicant is unconstitutional in light of recent jurisprudence.
- 3 Whether the applicant's mitigation and time served should be considered in resentencing.
Ratio Decidendi
The court found that the life sentence imposed on the applicant was unconstitutional, referencing the Court of Appeal's decision in Julius Kitsao Manyeso and the Supreme Court's guidance in Muruatetu. Given the applicant's mitigation, time already served, and the recommendation from the Sentence Review Report for community service, the court exercised its discretion to set aside the life sentence and substitute it with a determinate term of 20 years imprisonment, effective from the date of arrest in 2011. The court recognized the seriousness of the capital offence but balanced this with the applicant's demonstrated remorse and the evolving legal standards regarding sentencing for such...
Court Disposition
Application for resentencing allowed; life sentence set aside and substituted with 20 years imprisonment from date of arrest.
Orders
- The life imprisonment sentence is set aside.
- The applicant is sentenced to 20 years imprisonment to run from the date of arrest in 2011.
Full Case Text
Judgment text and source record
21 paragraphs
Bao v Republic (Miscellaneous Criminal Application E105 of 2023) [2024] KEHC 4088 (KLR) (15 March 2024) (Ruling)
Neutral citation: [2024] KEHC 4088 (KLR)
Republic of Kenya
In the High Court at Mombasa
Miscellaneous Criminal Application E105 of 2023
A. Ong’injo, J
March 15, 2024
Between
Kyalo Nguthu Bao
Applicant
and
Republic
Respondent
Ruling
1. The Applicant Kyalo Nguthu Bao was charged with the robbery with violence in Mombasa Chief Magistrate Court CR. Case No. 799 of 2011. He was convicted and sentenced to serve life imprisonment on 23rd July 2013.
2. He preferred an Appeal in CR. A. No. 128 of 2013 but the lower court proceedings were not availed and on 29th July 2019 Hon. E.K. Ogola J ordered that the court would take administrative action on the matter by trying to locate the lower court proceedings upto 29/05/2023 the lower court proceedings had not been availed.The Applicant therefore opted to withdraw the appeal.
3. Subsequently he filed the application herein seeking that his mitigation be considered before he is re-sentenced. He urged the court to apply the principle set out in Muruatetu by the Supreme Court.
4. The Applicant argued that he had been in prison for about 10 years from 23rd July 2013 and 2 years in remand. He said he was 25 years at the time that he committed the offence and that he is remorseful.
5. This court called for Sentence Review Report which was filed on 16/11/2023 and it was recommended that the applicant be placed to work on Community Service at DCC Katulani under supervision of Assistant County Commissioner.
6. This Court is cognizant of the fact that life sentence has since been declared unconstitutional in the Julius Kitsao Manyeso case by the Court of Appeal at Malindi and therefore the same is set aside and being that offence for which the applicant was convicted is a capital offence for which maximum penalty is death sentence, I do hereby substitute the life imprisonment with 20 years jail term to take effect from date of arrest in 2011.
DATED, SIGNED AND DELIVERED IN OPEN COURT/ONLINE THROUGH MS TEAMS,THIS 15TH DAY OF MARCH 2024HON. LADY JUSTICE A. ONG’INJOJUDGEIn the presence of: -Etropia - Court AssistantMr. Ngiri for the RespondentHON. LADY JUSTICE A. ONG’INJOJUDGE