Stanlaus Wambua Nzioka v Republic [2019] KEHC 3652 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MAKUENI

HCCR. MISC.APPL NO. 16 OF 2019

STANLAUS WAMBUA NZIOKA................APPLICANT

-VERSUS-

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

RULING

1. The Applicant herein was convicted in the Makueni Principal Magistrate’s Cr. Case no. 153/2014, for an offence of robbery with violence contrary to Section 296(2) Penal Code and sentenced to death on 5th November, 2015.

2. He filed Makueni HCCRA. No. 20 of 2017 which was heard and a judgment dismissing the appeal delivered on 8th June, 2017.

3. He has filed this application seeking review of sentence citing the case of Francis Muruatetu & Anor –vs- Republic – Supreme Court Petition no. 15 of 2015.

4. The judgment in the Francis Muruatetu was delivered on 14th December, 2017. The Supreme Court declared the mandatory death sentence to be unconstitutional. It therefore gave the trial courts an opportunity to exercise discretion in sentencing by considering all other circumstances before passing a death sentence. Since Justice Kariuki’s judgment in HCCRA No. 20 of 2017 was delivered before the Francis Muruatetu, it is clear that the learned Judge confirmed the death sentence as was the law then.

5. The Applicant is therefore asking the court to consider his mitigation and reduce the sentence.

6. Mrs. Owenga for the Respondent did not oppose the application on re-sentencing in view of the Francis Muruatetu case. She however did not agree with the Applicant’s submission that the conviction and sentence were null and void.

7. In response to that submission, the Applicant stated that his only issue was on sentence.

8. From the lower court record, the Applicant did not offer any mitigation. He cannot therefore claim that his mitigation was not considered. The prosecution did not avail any record of the Applicant’s past record. It is therefore taken that he was a first offender.

9. I am guided by the Francis Muruatetu case (supra) and the following Court of Appeal cases: Christopher Ochieng –vs- R (2018) eKLR, Kisumu Criminal Appeal No. 202 of 2011; Jared Kovita Injiri –vs- R, Kisumu Criminal Appeal No. 93 of 2014; Evans Wanjala Wanyonyi –vs- R (2019) eKLR in determining the suitable sentence in the circumstances.

10. This offence of Robbery with Violence was committed on 25th March 2013 and the Applicant was arrested on 26th March 2014. He remained in remand custody upto 5th November, 2015 when judgment was delivered and he was sentenced to death. This period was 1year and 7 months. The Applicant claims to have undergone a transformation while in prison. Even as I consider all these, it is not lost to me that this offence is serious and that the Applicant and his accomplices were armed with a pistol as they robbed the complainant.

11. I have considered the circumstances under which the offence was committed and the 1 year and 7 months that the Applicant was in remand custody; He has served four (4) years in prison. I therefore make the following orders, on the re-sentencing:

1. The death sentence meted out against the Applicant on 5th November, 2015 is hereby set aside.

2. He will serve fifteen (15) years imprisonment from the date of conviction and sentence.

Orders accordingly.

DELIVERED, SIGNED AND DATED THIS 17TH DAY OF OCTOBER, 2019 IN OPEN COURT, AT MAKUENI.

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H.I ONG’UDI

JUDGE