[2021] KEHC 3852 (KLR)
The court found that the applicant was lawfully sentenced to death for the offence of robbery with violence after being given an opportunity to mitigate. The Francis Muruatetu decision did not outlaw the death penalty, and the Constitution permits it. The applicant's sentence was commuted to life imprisonment, which...
Source-derived case information.
- Citation
- [2021] KEHC 3852 (KLR)
- Parties
- Applicant: Yona Otieno Wauna; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Constitutional Petition E005 of 2021
- Procedural Posture
- Sentence Review Application / Ruling
- Outcome
- application dismissed
- Judges
- RE Aburili
- Legal Topics
- Sentence Review, Death Penalty, Mitigation of Sentence, Life Imprisonment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Yona Otieno Wauna
Applicant
Republic
Respondent
Procedural Posture
Sentence Review Application / Ruling
Legal Issues
- 1 Whether the applicant is entitled to resentencing following the Francis Muruatetu decision.
- 2 Whether the sentence of death imposed on the applicant was unconstitutional or unlawful.
- 3 Whether the commutation of the death sentence to life imprisonment warrants further sentence review.
Ratio Decidendi
The court found that the applicant was lawfully sentenced to death for the offence of robbery with violence after being given an opportunity to mitigate. The Francis Muruatetu decision did not outlaw the death penalty, and the Constitution permits it. The applicant's sentence was commuted to life imprisonment, which is a lesser sentence and not unconstitutional. The applicant did not appeal the sentence to the Court of Appeal. Therefore, there was no illegality or unconstitutionality in the sentence, and the application for resentencing was without merit and dismissed.
Court Disposition
application dismissed
Orders
- The application for resentencing is dismissed.
- File closed.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT SIAYA
CONSTITUTIONAL PETITION NO. E005 OF 2021
CORAM: HON. R.E. ABURILI, J
YONA OTIENO WAUNA..............................................................................APPLICANT
VERSUS
REPUBLIC................................................................................................RESPONDENT
(Being an Application for Sentence Review against sentence in
Siaya Principal Magistrate’s Court in Cr. Case No. 568 of 2017)
RULING
1. I have considered the application by the applicant convict herein YONA OTIENO WAUNA. From the judgment of the trial court in Siaya PM Cr. Case No. 568/2007, the accused /applicants/petitioner/convict and his co-convicts were given the opportunity to mitigate before they were sentenced to suffer death. Albeit this was prior to the 2010 Constitution and the Francis Muruatetu decision, it is clear that the accused were given the opportunity to mitigate before they were sentenced to death and they opted to say nothing in mitigation.
2. The Francis Muruatetu decision did not outlaw death sentence. In addition the Constitution does not outlaw death sentence. See Article 26(3) of the Constitution. The death sentence imposed on the convict was lawful, upon being convicted for the offence of robbery with violence, having regard to the circumstances of the case.
3. Furthermore, the said death sentence was never executed as the convict’s death now was commuted to life imprisonment. That being the case, as the convict is serving life imprisonment which is a lesser severe sentence as contemplated in Article 50(2) (p) of the Constitution, there is no illegality or unconstitutionality of the sentence impugned.
4. The applicant had the opportunity to appeal to the Court of Appeal, against the sentence which right he did not utilize.
5. Accordingly, I find the application for resentencing not merited. I dismiss it.
6. File closed.
7. Orders accordingly.
DATED, SIGNED AND DELIVERED AT SIAYA THIS 21ST DAY OF SEPTEMBER 2021
R.E. ABURILI
JUDGE