JUDGMENT OF THE COURT
1. The appellant was convicted of robbery with violence and sentenced to death by the trial court at Mwingi. His first appeal against both conviction and sentence to the High Court was unsuccessful, hence this second appeal. However, when the second appeal came up for hearing, the appellant, through Mr. Dome, chose to withdraw his appeal against conviction and instead pursue the appeal in respect of the death sentence only.
2. Mr. Dome told the Court that the Supreme Court of Kenya in FRANCIS KARIOKO MURUATETU and OTHERS v. REPUBLIC [2017] eKLR held that the mandatory death sentence was unconstitutional. He submitted that the appellant had already served (8) years in custody and urged us to reduce the sentence to the period already served.
3. On the other hand, Mr. Hassan Abdi, learned counsel for the respondent, urged the Court to refer the matter to the trial court so that the prosecution will have an opportunity to file a pre-sentencing report for the court’s con…