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|Case Number:||Petition 29 of 2019|
|Parties:||Yusuf Ali Wasike v Republic|
|Date Delivered:||30 Dec 2020|
|Court:||High Court at Eldoret|
|Judge(s):||Teresia Mumbua Matheka|
|Citation:||Yusuf Ali Wasike v Republic  eKLR|
|Case Outcome:||Court directs that matter be placed before the Chief Magistrate Eldoret within 14 days hereof for the appropriate action.|
|Disclaimer:||The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information|
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
PETITION NO. 29 OF 2019
YUSUF ALI WASIKE................................APPLICANT
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
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,
IN THE MATTER OF CONTRAVENTION OF FUNDAMENTAL RIGHTS UNDER CHAPTER 4 OF THE CONSTITUTION OF KENYA, 2010.
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  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
In the presence of:
Court Assistant Martin
Court Prosecutor Ms Limo