Mulatya Musau v Republic [2018] KEHC 3797 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KITUI

PETITION NO. 5 OF 2018

IN THE MATTER OF SUPREME COURT PETITION NO. 15 OF 2015

AND

IN THE MATTER OF COURT OF APPEAL NO. 109 OF 2006 – NAIROBI

AND

IN THE MATTER OF HIGH COURT CRIMINAL APPEAL NO. 181 OF 2004 – MACHAKOS

AND

IN THE MATTER OF CRIMINAL CASE NO. 301 OF 2004 AT KITUI

BETWEEN

MULATYA MUSAU.........................................................APPLICANT

VERSUS

REPUBLIC.....................................................................RESPONDENT

R U L I N G

1. By an application filed herein on the 11th June, 2018the Applicants seek review of the sentence imposed following their conviction for the offence of Robbery with Violencecontrary to Section 29(2)of the Penal Code.Their argument is that the mandatory nature of the sentence meted out is unconstitutional and therefore prejudicial to him.

2. The application arises as a result of the decision of the Supreme Court in Francis Karioko Muruatetu & Another vs. Republic SCK Petition Number 15 of 2015 (2017) eKLR.A decision that declared the death sentence unconstitutional and referred the matter for re-sentencing.

3. By the nature of the case the Applicant was charged with the Court of the first instance was the Magistrate’s Court.  Consequently, I hereby remit the case to the Trial Court for re-sentencing.  Mention before the Chief Magistrate, Kitui on the 3rd October, 2018for directions.

4. It is so ordered.

Dated, Signedand Deliveredat Kituithis 27thday of September,2018.

L. N. MUTENDE

JUDGE