1.The applicant was charged vide High Court Criminal Case No. 48 of 2015 at Naivasha, with the offence of murder contrary to section 203 as read with section 204 of the Penal Code (Cap 63), Laws of Kenya. The particulars of the offence are that, on 25th February 2015 at Good for village in Silibwet location in Nyandarua West District within Nyandarua County, he murdered Kosgey Sienyo. He pleaded not guilty and the case was fully heard. He was subsequently found guilty, convicted and sentenced to suffer death.
2.However, by a notice of motion application herein he seeks for resentencing. The application is supported by his affidavit in which he avers that the sentence of death was commuted to life imprisonment by the President of the Republic of Kenya but he has not exhausted his right to appeal. That, Article 165 (3) of the Constitution of Kenya, 2010 grants this court jurisdiction to determine the matter.
3.That, he was not accorded fair hearing during sentencing in the trial court in contravention of Article 50 (2) (q) of the Constitution of Kenya, 2010. He relies on the decision(s) in Douglas Muthaura Ntoribi Misc App No. 4 of 2015, John Ng’ang’a Gacheru & Another, Kiambu HCCR Case No 31 of 2016 and WillOiam oungu Kittiny vs Rep (2018) eKLR. Further, the Supreme Court in the case of Francis Karioki Muruatetu and Another vs Rep Petition 15 of 2015 declared the mandatory death penalty as unconstitutional and he is therefore seeking for resentencing.
4.At the hearing of the application, the applicant informed the Court that he had file an appeal in the Court of Appeal at Nakuru being Criminal Appeal No. 27 of 2017. However he filed a notice of withdrawal on 16th December 2020, confirmed by a letter dated 20th January 2021 from the Deputy Registrar, Court of Appeal at Nakuru.
5.Be that as it may, the application was disposed of by filing of submissions. The applicant filed submissions on 30th September 2020, in which he reiterated that the Supreme Court in Petition 15 of 2015 Francis Kariako Muruatetu & Another vs Republic  eKLR declared the mandatory nature of the death sentence in murder cases unconstitutional and the same adopted by the Court of Appeal and the High Court. As a result, offenders have gained access to justice as envisaged in Article 48 of the Constitution of Kenya 2010 and benefited from the least severe punishment under Article 50 (2) (p), and (q) of the Constitution of Kenya 2010.
6.Further, that the High Court has jurisdiction to deal with sentence review under Article 165 (3) (a) of the Constitution and is enjoined to interpret the Constitution in a manner that most favours the enforcement of rights and fundamental freedoms under Article 20 (3) (b).
7.He argued that the mandatory sentences having being declared unconstitutional the courts are permitted to examine the peculiar circumstances of each case and arrive at an appropriate sentence. He relied on the case of R vs John Nganga Gacheru & Another  eKLR where the court considered the fact that, the accused persons being under the influence of alcohol as a relevant factor to consider in sentencing. That considering the mitigating and aggravating factors, the sentence imposed was excessive. Furthermore, that sentences should be geared towards meeting the objectives set out in the Sentencing Policy Guidelines.
8.That while in custody he has undergone rehabilitation through various programmes such as the Prisoner’s Journey, Discipleship Certificates, Maisha Mapya and Association of Faith in church Ministries. Further, he joined Naivasha Inmates Centre and is undertaking primary level classes. That he is remorseful, suffers from an ulcerative disease, and before his arrest he was taking care of his mother who is old and sickly. That he has already spent five (5) years in prison and prays for leniency to be released to continue with his life.
9.However, the respondent on its part filed submissions dated, 27th May 2022 and opposed the application on grounds here below reproduced verbatively that: -
10.In addition, the court ordered the Probation Department to file a pre-sentence report which was filed on 14th January 2022, indicating that the appellant is thirty-three (33) years and , the fourth born out of four (4) siblings. Prior to his arrest, he lived on his parents’ land in Boiman together with his eldest brother.
11.That, he is not married and has no children. He dropped out of school in class 5 and became a herd boy and did small scale farming at home prior to his arrest. That, his family members state that he was involved in petty thefts especially from home but is hardworking and useful and are optimistic that he is reformed. That, if released, they are ready to receive and help him settle.
12.The views of the victim’s family are not captured in the report as the victim allegedly lived alone and did not reveal much about himself hence there was no evidence that he had any known family or relatives. Further he migrated to the area where he was murdered.
13.It is indicated in the report that the Area Chief and the applicant’s neighbours state he was known for petty theft but is hardworking from an early age and grew potatoes and horticultural produce for sale. The Chief is not opposed to his release but recommends the applicant relocates from the location due to stigmatization of being labelled a murderer.
14.The report further indicates that, he has resumed school and is in class 7 and will be sitting for his KCPE examination at the end of the year 2022. The Probation officer, Kamau Joel, states that the applicant is a first offender but with allegations of pilfering in the family and society and recommends his sentence be reviewed to a specific period.
15.Be that as it were, having considered the arguments by the respective parties I note that the power of the court to hear and determine the application herein is founded on the Supreme Court’s decision in the case of Francis Karioko Muruatetu & Another vs. Republic (supra) where it stated that: -
16.In addition, Article 50 (2) (p) of the Constitution of Kenya provides for the right of the convict to benefit from the least severe of the prescribed punishments for an offence, if the prescribed punishment for the offence has been changed between the time the offence was committed and the time of sentencing.
17.Furthermore, the legal principle underpinning the sentencing process are stated under clause 3 of the Sentencing Policy Guidelines as follows: -
18.In the same vein, the objective of sentence must be considered. In that regard Paragraph 4.1 of the Judiciary Sentencing Policy Guidelines, stipulates the objectives of sentencing as follows: -
20.Pursuant to the aforesaid I have considered the following factors in determining the sentence to mete outI deem this to be suitable case for sentence review.
21.However, on the flipchart it should be noted that no kind of sentence can ever return life lost. The victims of crime remain at a loss for all the days of their life. In this particular matter, the views of the victims have not been captured. Therefore the court should not be influenced fully by the sentiments of the applicant’s family members and other persons interviewed. The punishment of death prescribed for the offence of murder connotes the seriousness thereof. As such the sentence meted out should not make a mockery of the same, the applicant has to pay for the offence. I therefore sentence the accused to serve a custodial sentence of twenty five (25) years imprisonment
22.On the time spent in custody, section 333 (2) of the Criminal Procedure Code is couched in mandatory terms that the court during sentencing to take into account the period spent in custody, and it provides that: -
24.In this case the applicant was first arraigned in court on 12th March 2015 and took plea on 20th April 2015. There is no evidence that he was given any bail or bond terms on record. Judgement was delivered against him on 13th April 2017. From the record, the applicant was in custody during the trial for a period of two (2) years one (1) month. The sentence will take effect from the date he was arraigned in court.
25.It is so ordered.