REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISII

CRIMINAL PETITION NO. 2 OF 2021

CHACHA MARUA JOSEPHAT.....APPLICANT

VERSUS

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

JUDGMENT

1. On the 7^th September 2020 Chacha Marua Josephat (‘the petitioner’) filed Petition No. 82 of 2020. This Petition was filed at the High Court of Kenya in Kisumu. In the said petition aver that he was charged with the offence of robbery with violence c/s 296 (2) of the Penal Code and was sentenced to suffer death. He appealed to the High Court and his appeal was dismissed. His death sentence was later commuted to life in the year 2016 by the President. That on the 14^th December 2017 in Petition No. 15 and 16 of 2015 the death sentence was declared unconstitutional, hence the death sentence imposed on him is unconstitutional and denies him a right to live. He sought a review of the death sentence by virtue of article 165, 23, (1) (3) and 50 (20 (q) of the constitution. Petition No. 82 of 2020 was never heard and determined, it was transferred from Kisumu High Court. Upon its transfer, the said Petition acquired a new number Criminal Petition No. 2 of 2021.

2. The Petitioner filed Mitigating Submissions and aver as follows; that he has been in prison for about 12 years and during the said periods he has been rehabilitated in many ways. That he has been taking some theological studies such certificates and a diploma in Emmas Bible School. That he has also attained grade 1, 2, 3 in upholstery. He seeks that his petition be allowed and that he be set at liberty in order to promote and involve in nation building.

3. At the hearing of this petition, the petitioner sought the court’s assistance arguing that by the time he applied for re-sentencing the Supreme Court had not made its subsequent ruling.

4. The Respondent through Mr. Kaino argued that there was a Court of Appeal decision in 2013 dismissing the petitioner’s appeal. That the case of Francis Karioko Muruatetu & Another v Republic [2017] eKLR only applies to murder cases. That the Supreme Court has given directions and its decision does not apply to Robbery with Violence cases or Sexual Offences.

5. The petitioner has acknowledged that his appeals in the High Court and Court of Appeal were dismissed. Indeed he filed his petition in Kisumu High Court before the Supreme Court gave its direction in the Muruatetu case. The Supreme Court on 6th July, 2021 gave directions that the decision in the Muruatetu (supra) case only applied in respect to sentences of murder under sections 203 and 204 of the Penal Code.

6. The said direction is binding to this court, thus the petitioner’s request for resentencing cannot be granted by this court. His petition is dismissed.

7. In the end, the Applicant’s Petition for review of the sentence filed on 21st May 2020 is lacking in merit and the same is dismissed. File is closed.

DATED, SIGNED AND DELIVERED AT KISII THIS 2^ND DAY OF MARCH 2022.

R.E.OUGO

JUDGE

In the presence of:

Chacha Marua Josephat  Petitioner

Mr. Kaino   State Counsel ODPP

Kevin    Court Assistant