1The applicant herein was charged in Bungoma High Court Criminal Case No. 22 of 2001 with the offence of Murder contrary to Section 203 as read with Section 204 of the Penal Code. Particulars were that on 16/12/2000 at Sanandiki Village Chwele Location in Bungoma District within Western Province murdered Elijah Nangata Kiliswa.
2After full trial, the applicant was convicted and sentenced to suffer death. Dissatisfied, he appealed to the Court of Appeal sitting in Eldoret which dismissed the appeal thus the instant application in which the applicant seeks a re-hearing on the sentence.
3This court ordered the application be disposed of by way of written submissions. Both parties complied. The applicant relies on the decision in Francis Karioko Muruatetu & another Vs Republic (2017)eKLR for the proposition that death penalty is unconstitutional as it deprives judicial officers of their discretion when it comes to sentencing.
6On the rehabilitative steps he has undertaken in custody, he submits that he has attained National Trade Test Certificate in carpentry and joinery grades 1, 2 and 3, Certificate in Biblical Studies, Diploma in Master Life Fellowship as well as a recommendation letter from the Officer-in Charge, Naivasha Main Prison.
7On his age, he submits that he was convicted when he was 23 years, he is a first offender and he is remorseful.
8The respondent in opposing the application for re-sentencing asked court to consider the facts of the case, the fact that life was lost as result of the applicant’s actions, the position of the deceased’s family and that death penalty is still a legal sentence in Kenya.
9Since the pronouncement of the Supreme Court in Francis Karioko Muruatetu & another Vs Republic (2017) eKLR, many convicts who had been sentenced to suffer death applied to the trial court for a review of their sentences. This is based on the fact that there is no pending appeal against either the conviction or sentence or both. The applicant in this case unsuccessfully lodged his appeal at the Court of Appeal. It is also pegged on the consideration that there is no dispute over the propriety of the sentence or conviction. A re-sentence hearing is limited to a consideration of the sentence only.
10Some of the mitigating factors raised by the applicant are that; he is a first time offender, he is a family man whose life and that of his family has been affected by the imprisonment and that he has taken full advantage of rehabilitative services offered in prison. This is commendable achievement.
11It is not lost to this court that life was lost as a result of his actions which calls for a custodial sentence in order to rehabilitate and deter such criminal conduct. It is also a fact that struck the deceased with an axe and must have occasioned excruciating pain since the deceased succumbed to his injuries approximately four months later having been taken to various hospitals.
12On the issue of when the sentence should start running, the court is alive to the proviso to Section 333(2) of the Criminal Procedure Code which permits this court to consider the pre-sentence remand. The applicant was arrested on 18/12/2000, convicted and sentenced on 15/12/2005. He preferred an appeal thereafter which was dismissed. It is the view of this court that had the applicant wished the period spent in custody to be considered, he should have raised the issue during the appeal as he also appealed against conviction and sentence.
13The hierarchy of courts is a constitutional creature, the Court of Appeal ranks high to the High Court and the decisions emanating therefrom are binding to this court. In this case, what the applicant seeks or seems to be seeking is a review of a sentence which has been affirmed by the appellate court.
14As such, having taken into account the mitigation tendered in this court, the respective written submissions and the authorities cited by the parties, I decline to review the sentence for the reasons given in the preceding paragraphs with the resultant order being that the application is hereby dismissed.