[2022] KEHC 10641 (KLR)

Chesori v Republic (Miscellaneous Criminal Application 85 of 2019) [2022] KEHC 10641 (KLR) (10 May 2022) (Ruling)

Neutral citation: [2022] KEHC 10641 (KLR)

Republic of Kenya

In the High Court at Bungoma

Miscellaneous Criminal Application 85 of 2019

SN Riechi, J

May 10, 2022

Between

Winsor Segero Chesori

Applicant

and

Republic

Respondent

Ruling

1The applicant herein was charged and convicted for the offence of robbery with violence contrary to section 296(2) of the Penal Code and being in possession of a prohibited firearm. After full trial, he was sentenced by the subordinate court to suffer death. He appealed to the High Court Vide Criminal Appeal No. 203 of 1997 where Sergon and Kariuki JJ affirmed the conviction and sentence. Still dissatisfied, he appealed to the Court of Appeal where the learned judges of appeal O’kubasu, Githinji and Aganyanya JJ.A similarly affirmed the conviction and sentence. The sentence was later commuted to life imprisonment by His Excellency the president of the Republic of Kenya.

2Having exhausted the appellate avenues, the applicant now approaches this court seeking a re-hearing only on sentence. He states that this court ought to be guided by the decision in Francis Karioko Muruatetu & another Vs Republic(2017)eKLR, that he was convicted as first offender, he is a young man whose life has been greatly affected by the imprisonment and that he has exploited and benefited from rehabilitative programmes offered in prison.

3The parties were directed to file written submissions. The applicant submits that the court is empowered to apply the principles in Muruatetu case (supra) even in robbery with violence cases as applied by the Court of Appeal in the case of William Okungu Kittiny vs Republic (2018)eKLR and the High Court in Michael Kathewa Laichena & another Vs Republic (2018)eKLR.

4He submits that while in prison, he has taken full advantage of rehabilitative programmes and is now a holder of certificates in financial education for women and youth, bible correspondence courses, Emmaus Bible School and a certificate in celebrate recovery 2017. He also enrolled in Primary School attaining 302 marks and a mean grade in Secondary School.

5On the sentence meted, he submits that he was convicted when he was 25 years of age and is now in his 30’s which age is productive to the society given a chance. He urges the court to consider the provisions of section 333(2) of the Criminal Procedure Code while computing his sentence.

6The respondent on its part submits that the decision in Francis karioko Muruatetu does not apply to cases of robbery with violence. That the sentence and conviction having been confirmed by the Court of Appeal, this court lacks jurisdiction to interfere with it.

7Having analysed the application together with the supporting documents and the rival submissions, this court finds that the only issue for determination is whether this court ought to review the sentence in line with the Supreme Court’s decision in Francis Karioko Muruatetu (Supra).

8It is worth noting that the applicant has exhausted the appeal mechanisms established by law, the death penalty was commuted to life imprisonment by his Excellency the President.

9However, in light of the directions issued in the Muruatetu decisional law by the Supreme Court on 6th of July, 2021, the court categorically stated that the decision only applies to murder cases preferred under section 203 and 204 of the Penal Code. The court stated;The decision of Muruatetu and these guidelines apply only in respect to sentences of murder under Sections 203 and 204of the Penal Code;

10Noting that the charges herein do not fall under section 204 of the Penal Code, the decision therefore is inapplicable in the circumstances. Similarly, the sentence having been confirmed by the Court of Appeal, this court lacks the requisite jurisdiction to interfere with it.

11The result is that the application is dismissed for lacking in merit.

DATED AT BUNGOMA THIS 10TH DAY OF MAY, 2022S.N. RIECHIJUDGE