[2020] KEHC 488 (KLR)
The court held that, in line with the Supreme Court's guidance in the Muruatetu case, the appropriate court to consider a rehearing of the applicant's sentence is the Chief Magistrate's Court, which originally heard and sentenced the applicant. The High Court therefore directed that the matter be placed before the...
Source-derived case information.
- Citation
- [2020] KEHC 488 (KLR)
- Parties
- Applicant: Yusuf Ali Wasike; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Petition 29 of 2019
- Procedural Posture
- Constitutional Petition / Ruling on Application for Sentence Rehearing
- Outcome
- Application referred to trial court for rehearing of sentence.
- Judges
- NA Matheka
- Legal Topics
- Mandatory Death Sentence, Sentence Rehearing, Bill of Rights Violation, Jurisdiction of High Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Yusuf Ali Wasike
Applicant
Republic
Respondent
Procedural Posture
Constitutional Petition / Ruling on Application for Sentence Rehearing
Legal Issues
- 1 Whether the applicant is entitled to a rehearing of his sentence following the Supreme Court decision in Francis Karioko Muruatetu and Another [2017] eKLR.
- 2 Whether the High Court has jurisdiction to rehear the sentence or if the matter should be remitted to the trial court.
Ratio Decidendi
The court held that, in line with the Supreme Court's guidance in the Muruatetu case, the appropriate court to consider a rehearing of the applicant's sentence is the Chief Magistrate's Court, which originally heard and sentenced the applicant. The High Court therefore directed that the matter be placed before the Chief Magistrate Eldoret for appropriate action, rather than rehearing the sentence itself. The court recognized its jurisdiction under Article 165(3)(b) but deferred to the Supreme Court's directions regarding the forum for sentence rehearing.
Court Disposition
Application referred to trial court for rehearing of sentence.
Orders
- The matter is to be placed before the Chief Magistrate Eldoret within 14 days for appropriate action.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT ELDORET
PETITION NO. 29 OF 2019
YUSUF ALI WASIKE................................APPLICANT
VERSUS
REPUBLIC............................................RESPONDENT
IN THE MATTER OF RE HEARING OF SENTENCE UNDER ARTICLE 19(3),22,23,25,26,27(1), 28,29,50(2)(Q),160, 159(1),160, 165(3)(B) OF THE CONSTITUTION OF KENYA, 2010 AND SECTION 261 OF THE CRIMINAL PROCEDURE CODE CAP 75 LAWS OF KENYA
AND
IN THE MATTER OF ARTICLES 21(1), 25( C), 259(A), (B) AND (D), 1(1)(3), 2(4), 258(1) OF THE CONSTITUTION OF KENYA, 2010,
AND
IN THE MATTER OF CONTRAVENTION OF FUNDAMENTAL RIGHTS UNDER CHAPTER 4 OF THE CONSTITUTION OF KENYA, 2010.
RULING
According to the Notice of Motion dated 12th November 2019, and the Supporting Affidavit sworn on the same date, the petitioner Yusuf Ali Wasike was charged in Eldoret Chief Magistrate’s Criminal Case Number 4090 of 2008 with the offence of Robbery with Violence c/s 296(2) of the Penal Code.
On 15th May 2009, having been found guilty of the offence he was convicted and sentenced to death. He filed High Court Criminal Appeal Number 84 of 2009, but the same was dismissed. The death sentence was later commuted to life imprisonment by the President of the Republic.
Following the Supreme Court decision in Francis Karioko Muruatetu and Another [2017] eKLR, on the unconstitutionality of the mandatory nature of the death sentence, he has brought this application for sentence rehearing.
The applicant also invokes Article 165 (3) (b) of the Constitution of Kenya on the jurisdiction of this court to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened. Nevertheless, regarding the issue he seeks to be determined, the Supreme Court, in the same case on which he places reliance, has already given directions.
However, in the words of the Supreme Court in that case at paragraph 111, it was stated:
“It is prudent for the same Court that heard this matter to consider and evaluate mitigating submissions and evaluate the appropriate sentence befitting the offence committed by the petitioners.”
On that premise, my view is that the applicant’s first point of call is the Chief Magistrate’s Court, which is the court that heard the matter and sentenced him in the first place.
I direct therefore that this matter be placed before the Chief Magistrate Eldoret within 14 days hereof for the appropriate action.
Dated and delivered virtually this 30th day of December, 2020.
Mumbua T. Matheka
Judge
In the presence of:
Court Assistant Martin
Petitioner Present
Court Prosecutor Ms Limo