Mwacharo v Republic [2024] KEHC 6282 (KLR)

Mwacharo v Republic (Miscellaneous Criminal Application E112 of 2023) [2024] KEHC 6282 (KLR) (30 May 2024) (Ruling)

Neutral citation: [2024] KEHC 6282 (KLR)

Republic of Kenya

In the High Court at Mombasa

Miscellaneous Criminal Application E112 of 2023

A. Ong’injo, J

May 30, 2024

Between

Bakari Yasin Mwacharo

Applicant

and

Republic

Respondent

Ruling

1. The applicant Bakari Yasin Mwacharo was charged and convicted for the offence of robbery with violence in Mombasa CMC Cr. C. No. 1347 of 2010 and Kwale CMC Cr. C. No. 1210 of 2010. He was then sentenced to life imprisonment. Hearing of the applicant’s appeal in Mombasa HC Cr. A. No. 166 of 2011 did not proceed because the lower court file could not be traced since filing of the appeal.

2. The applicant withdrew the appeal in Mombasa HC Cr. A. No. 166 of 2011 to pursue the application herein for review of his sentence.

3. The applicant now seeks that this court factors the remand period in his sentence and considers his mitigation as follows: -a.That he was a first offender.b.That he was aged 17 years at the time he committed the offence and showed remorse ahead of his sentence by the trial court.c.That he has been in the prison facility for a period of over 13 years with considerably good reputation.

4. The Sentence Review Report by Josiah Asande, Senior Probation Officer, Kisauni dated 7th November 2023 and filed on 22nd November 2023 was to the effect that the applicant has a supportive family that is ready to receive him back and have plans in place for his reintegration. That this will also allow the family to actively get involved in taking care of the inmate’s medical needs. It is recommended that the court considers placing him on non-custodial sentence of 3 years probation where the inmate can be supervised by the nearby Msambweni Probation Office.

5. In considered the Sentence Review Report, the applicant’s age at the time of commission of the offence and the years served, this court hereby sets aside the life imprisonment which has been declared unconstitutional in the Court of Appeal case of Julius Kitsao Manyeso v Republic [2020] eKLR where it was held that imposition of a mandatory indeterminate life sentence, is an unjustifiable discrimination, unfair and repugnant to the principle of equality before the law under Article 27 of the Constitution.

6. To that end, life imprisonment is substituted with 30 years imprisonment to take effect from 7th July 2011 pursuant to Section 333(2) of the Criminal Procedure Code. The last 3 years of sentence to be served on probation.

DATED, SIGNED AND DELIVERED IN OPEN COURT/ONLINE THROUGH MS TEAMS,THIS 30TH DAY OF MAY 2024HON. LADY JUSTICE A. ONG’INJO........................................JUDGEI certify that this is a true copy of the originalSignedDEPUTY REGISTRARIn the presence of: -Etropia- Court AssistantMr. Ngiri for the RespondentApplicant present in person