Case ID:181870

Yona Otieno Wauna v Republic [2021] eKLR

Case Metadata

Case Number:

Constitutional Petition E005 of 2021

Parties:

Yona Otieno Wauna v Republic

Date Delivered:

21 Sep 2021

Case Class:

Civil

Court:

High Court at Siaya

Case Action:

Ruling

Judge(s):

Roselyne Ekirapa Aburili

Citation:

Yona Otieno Wauna v Republic [2021] eKLR

Court Division:

Civil

County:

Siaya

Case Outcome:

Application dismissed

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

AT SIAYA

CONSTITUTIONAL PETITION NO. E005 OF 2021

CORAM: HON. R.E. ABURILI, J

YONA OTIENO WAUNA..............................................................................APPLICANT

VERSUS

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

(Being an Application for Sentence Review against sentence in

Siaya Principal Magistrate’s Court in Cr. Case No. 568 of 2017)

RULING

1. I have considered the application by the applicant convict herein YONA OTIENO WAUNA. From the judgment of the trial court in Siaya PM Cr. Case No. 568/2007, the accused /applicants/petitioner/convict and his co-convicts were given the opportunity to mitigate before they were sentenced to suffer death. Albeit this was prior to the 2010 Constitution and the Francis Muruatetu decision, it is clear that the accused were given the opportunity to mitigate before they were sentenced to death and they opted to say nothing in mitigation.

2. The Francis Muruatetu decision did not outlaw death sentence. In addition the Constitution does not outlaw death sentence. See Article 26(3) of the Constitution. The death sentence imposed on the convict was lawful, upon being convicted for the offence of robbery with violence, having regard to the circumstances of the case.

3. Furthermore, the said death sentence was never executed as the convict’s death now was commuted to life imprisonment. That being the case, as the convict is serving life imprisonment which is a lesser severe sentence as contemplated in Article 50(2) (p) of the Constitution, there is no illegality or unconstitutionality of the sentence impugned.

4. The applicant had the opportunity to appeal to the Court of Appeal, against the sentence which right he did not utilize.

5. Accordingly, I find the application for resentencing not merited. I dismiss it.

6. File closed.

7. Orders accordingly.

DATED, SIGNED AND DELIVERED AT SIAYA THIS 21

ST

DAY OF SEPTEMBER 2021

R.E. ABURILI

JUDGE