' REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT VIHIGA
CRIMINAL MISCELLANEOUS APPLICATION NO E044 OF 2024
ANDREW PEKU OTANGA………………………………………………APPLICANT
VERSUS
REPUBLIC……………………………………………………………….RESPONDENT
RULING
INTRODUCTION
In its decision that was delivered on 30 th April 2025, this court relied on the case of Mbugua & 6 Others vs Attorney General & 3 Others (Constitutional Petition E002 & E003 of 2024 (Consolidated)) [2025] KEHC 1248 (KLR) (24 February 2025) (Judgment) wherein this very court held that it was discriminatory to deny offenders who had been convicted of the offence of robbery with violence and attempted robbery with violence the right to have their mitigation during trial considered, while the non-capital offenders enjoyed that right.
It was in that regard that this court directed the Applicant herein to file his mitigation documents for consideration by this court. The Applicant herein filed his documents in support of his mitigation on 25 th June 2025 pursuant to the directions of this court on 13 th March 2024 and 19 th February 2025 in respect of his Notice of Motion application dated 4 th April 2023 and filed on 13 th March 2024 herein wherein he had sought a review of sentence.
His Written Submissions were dated on 13 th February 2025 and filed on 19 th February 2025 while those of the Respondent were dated 24 th March 2025 and filed on 25 th March 2025.
This Ruling is based on the said Written submissions which parties relied on in their entirety.
LEGAL ANALYSIS
The Applicant pleaded with the court to reduce his sentence to a least prescribed sentence for at the time of his sentencing the Trial Court stated that its hands were tied by a single sentence meted out by the law for the offence under Section 296(2) of the Penal Code. He invited the court to consider paragraph 4.8, 4.8.25, 5.1.21 of the Judiciary Sentencing Guidelines Revised, 2023.
He placed reliance on several cases among them the case of Makumbi Subui Manyeso vs Republic Criminal Appeal No 110 of 2022 (eKLR citation not given) where it was held that the Attorney General should take legislative measures that would facilitate periodic review of sentences for convicts who were either over seventy (70) years of age or who have served sentences over twenty (20) years imprisonment with a view to determining whether their continued incarceration was still justifiable or legally tenable and Shaban Salim Ramadhan & 8 Others (eKLR citation not given) where he claimed the court declared the sentence under Section 296(2) and 297(2) of the Penal Code unconstitutional.
He also cited the case of Willy Joel Makudo vs Republic[2019]eKLR where the court while considering the appellant’s mitigation, reduced his death sentence to seven (7) years imprisonment.
In his mitigation, he submitted that the ingredient of being in company of others was not proved, the injuries sustained by the complainant were minor and that the stolen items were modest. He argued that, therefore, it could not be contended that the offence herein was committed in circumstances that could be described as worst instances and/or that he was the worst offender.
He contended that he was arrested in his twenties and had no family. He asserted that he had spent twenty-four (24) years in prison and if his sentence was sustained it meant that he would die without a family of his own contrary to Article 19(2) of the Constitution of Kenya, 2010. He added that he was reformed, rehabilitated and socially re-adapted. He pointed out that as he had now attained skills in masonry, carpentry and Joinery Grades I, II, & III, he was ready to be integrated back into the community and use the vocational skills to earn a living instead of robbing people. He sought for the leniency of court.
On its part, the Respondent submitted that the sentence meted out to the Applicant was lawful considering the nature of the case. In this regard, it placed reliance on the case of Republic vs Jagani & Another (2001) KLR 590 where it was held that the purpose of the sentence was to assist in rehabilitation of offenders by providing for reparation for harm done to victims in particular and to society in general.
It argued that this court lacked the jurisdiction to review the Applicant’s sentence as the Applicant had already appealed to this court. It invoked Article 165(3) and (6) of the Constitution and cited the case of John Kagunda Kariuki vs Republic[2019]eKLR where it was held that as the applicant’s appeal had already been heard by the High Court, he could not return to the High Court for a review of the sentence imposed and that he was at liberty to make an argument for reduced sentence at the Court of Appeal.
It further invoked Section 362 and 364 of the Criminal Procedure Code and asserted that the power of the high court on review were to be exercised only over subordinate courts and not over the High Court with respect to its own decisions. It added that a convicted person could not appeal and at the same time seek review. It urged the court to dismiss the Applicant’s application herein for lack of merit.
In the case of Mbugua & 6 Others vs Attorney General & 3 Others (Constitutional Petition E002 & E003 of 2024 (Consolidated)) [2025] KEHC 1248 (KLR) (24 February 2025) (Judgment) , this very court held that it was discriminatory to deny offenders who had been convicted of the offence of robbery with violence and attempted robbery with violence the right to have their mitigation during trial considered, while the non-capital offenders enjoyed that right.
It recognised that under Article 27(1) of the Constitution of Kenya, persons who had been convicted for robbery with violence and attempted robbery with violence were also equal before the law, they had a right to be protected before the law and had to derive equal benefit from the law as the non- capital offenders.
The court’s decision was in line with the directions of the Supreme Court on 6 th July 2021 in Francis Karioko Muruatetu and Another vs Republic [2017] eKLR (commonly now known as Muruatetu II) that the question of constitutionality of the death sentence in robbery with violence cases ought to commence at the High Court and thereafter escalated to the Court of Appeal, if necessary. It rendered itself as follows:-
“46. To clear the confusion that exists with regard to the mandatory death sentence in offences other than murder, we direct in respect of other capital offences such as treason under section 40 (3), robbery with violence under section 296 (2), and attempted robbery with violence under section 297 (2) of the Penal Code, that a challenge on the constitutional validity of the mandatory death penalty in such cases should be properly filed, presented, and fully argued before the High Court and escalated to the Court of Appeal, if necessary, at which a similar outcome as that in this case may be reached. Muruatetu as it now stands cannot directly be applicable to those cases (emphasis court).”
In the case of Ramadhan & 8 others v General & another (Petition 5 of 2022 & Constitutional Petition 6 of 2022 (Consolidated)) [2024] KEHC 1173 (KLR) (6 February 2024) (Judgment) , Sewe J looked at the mandatory nature of the death sentence under Section 296(2) and 296(2) of the Penal Code and declared it unconstitutional. She further directed that the petitioners be presented before the respective sentencing courts for sentence re-hearing upon appropriate applications
In the case of Mbugua & 6 Others vs The Hon Attorney General (Supra) as consolidated with Alfred Eyase Kinamundu & 2 Others vs the Hon Attorney General & Others (Supra), this court looked at the aspect of re-sentencing of persons who had been convicted under Section 296(2) and Section 297(2) of the Penal Code and rendered itself as follows:-
“67. The purpose of incarceration is rehabilitation and reformation of prisoners. It was psychological torture for a prison to take numerous courses to improve himself or herself in prison but never use those skills in the society. Indeed, learning of skills had the purpose of easing the integration of prisoners back into the society. Life imprisonment denied convicts who were on life sentence hope for a better future. It was discriminatory that all convicts had hope of going home other than those who had been convicted of the offence of robbery with violence and attempted robbery with violence. There had to be a determinate period within which a person had to atone for their sins.
The long indeterminate incarceration while undergoing rehabilitation programs without the prospect of being released was in the considered opinion of this court a blatant violation of the Petitioners’ right to dignity contrary to Article 28 of the Constitution of Kenya….
For those who had been convicted and did not have the benefit of mitigating before being sentenced such as the Petitioners herein, they had a reprieve in Article 50(2) of the Constitution of Kenya which sets out some of the principles that were considered to constitute fair trial. One of these principles was the right to lodge an appeal or apply for review in a higher court, if convicted as stipulated in Article 50 (2) (q )) of the Constitution of Kenya.
Such mitigation, which would include the behaviour while in prison and proof of reformation and possibility of reintegration in the society which would enable an appellate and/or review court have a holistic view of the case. During appeal or review of a case, a higher court would have had all the facts and circumstances of the accused on record to enable it assess the appropriate sentence in case there was merit for a sentence reduction.”
In this regard, it found that applicants seeking re-sentencing ought to file documents to support their mitigating factors. These documents could include certificates of programmes they had undergone in prison leading to their rehabilitation and recommendation letters from the In-charges of prisons.
While considering the present application for re-sentencing, this court was alive to the fact that the Court of Appeal upheld the death sentence that was meted out against the Applicant herein. It was the mandatory nature of the death sentence that this court found to have been unconstitutional and found that persons who had been convicted for the offence of robbery with violence and attempted robbery ought to be allowed to mitigate and be re-sentenced.
This court noted that appellants who included Francis Karioko Muruatetu in the Court of Appeal case of Gachanja & 7 Others (Criminal Appeal 51 of 2004) [2011] KECA 402 (KLR) (20 May 2011) Judgment were re-sentenced by the High Court on 16 th December 2019 in Misc Criminal No 394 of 2017 consolidated with Misc Criminal Applications Nos 614, 28, 560, 589, 590 and 586 of 2018.
In the same vein, as the Court of Appeal had not yet dealt with the constitutionality of the mandatory nature of death sentence in respect of the Applicant herein, this court therefore found and held that it would not be violating the doctrine of stare decisis if it determined that it could allow applicants seeking re-sentence to mitigate and then re-sentence them in line with the case of Mbugua & 6 Others vs The Hon Attorney General (Supra) as consolidated with Alfred Eyase Kinamundu & 2 Others vs the Hon Attorney General & Others (Supra) and Ramadhan & 8 others v General & another (Supra) despite the Court of Appeal having upheld their death sentence on appeal.
In this regard therefore, this court recognised that as it had both original and appellate jurisdiction to hear criminal and civil cases as provided in Article 165(3)(a) of the Constitution of Kenya and further it could review the decision of the lower court as provided under Article 50 (2) (q ) of the Constitution of Kenya, it did not have to send the lower court file back to the lower court for re-sentencing.
To avoid further delays in this matter, this court found it prudent to consider the mitigation and re-sentencing of the Applicant herein as it already had proceedings of the Trial Court. In reviewing the sentence herein, this court was interested to establish if the Applicant herein had been reformed with a view to being re-integrated in the society.
Although the Applicant had furnished this court with copies of his Certificates and it was necessary for him to file a Recommendation letter by the Officer-In- Charge of Kisumu Maximum Prison and the court obtain a Pre-Sentence Report to enable the court make an informed decision regarding his prayer for re-sentencing.
DISPOSITION
For the foregoing reasons, the upshot of this court’s decision was that the Applicant’s Notice of Motion application that was dated 4 th April 2024 and filed on 13 th March 2024 was merited and the same be and is hereby allowed in the following terms:- THAT the Applicant to provide the letter of Recommendation from the Officer in Charge Kisumu Maximum Prison by 28 th November 2025.
THAT the Probation Office file a Pre-Sentence Report by 28 th November 2025.
THAT the Applicant be and is hereby directed to appear before this court for mitigation and sentencing on 17 th December 2025.
It is so ordered.
DATED and DELIVERED at VIHIGA this 29 th day of October 2025
J. KAMAU
JUDGE
'
IN THE HIGH COURT OF KENYA AT VIHIGA
CRIMINAL MISCELLANEOUS APPLICATION NO E044 OF 2024
ANDREW PEKU OTANGA………………………………………………APPLICANT
VERSUS
REPUBLIC……………………………………………………………….RESPONDENT
RULING
INTRODUCTION
In its decision that was delivered on 30 th April 2025, this court relied on the case of Mbugua & 6 Others vs Attorney General & 3 Others (Constitutional Petition E002 & E003 of 2024 (Consolidated)) [2025] KEHC 1248 (KLR) (24 February 2025) (Judgment) wherein this very court held that it was discriminatory to deny offenders who had been convicted of the offence of robbery with violence and attempted robbery with violence the right to have their mitigation during trial considered, while the non-capital offenders enjoyed that right.
It was in that regard that this court directed the Applicant herein to file his mitigation documents for consideration by this court. The Applicant herein filed his documents in support of his mitigation on 25 th June 2025 pursuant to the directions of this court on 13 th March 2024 and 19 th February 2025 in respect of his Notice of Motion application dated 4 th April 2023 and filed on 13 th March 2024 herein wherein he had sought a review of sentence.
His Written Submissions were dated on 13 th February 2025 and filed on 19 th February 2025 while those of the Respondent were dated 24 th March 2025 and filed on 25 th March 2025.
This Ruling is based on the said Written submissions which parties relied on in their entirety.
LEGAL ANALYSIS
The Applicant pleaded with the court to reduce his sentence to a least prescribed sentence for at the time of his sentencing the Trial Court stated that its hands were tied by a single sentence meted out by the law for the offence under Section 296(2) of the Penal Code. He invited the court to consider paragraph 4.8, 4.8.25, 5.1.21 of the Judiciary Sentencing Guidelines Revised, 2023.
He placed reliance on several cases among them the case of Makumbi Subui Manyeso vs Republic Criminal Appeal No 110 of 2022 (eKLR citation not given) where it was held that the Attorney General should take legislative measures that would facilitate periodic review of sentences for convicts who were either over seventy (70) years of age or who have served sentences over twenty (20) years imprisonment with a view to determining whether their continued incarceration was still justifiable or legally tenable and Shaban Salim Ramadhan & 8 Others (eKLR citation not given) where he claimed the court declared the sentence under Section 296(2) and 297(2) of the Penal Code unconstitutional.
He also cited the case of Willy Joel Makudo vs Republic[2019]eKLR where the court while considering the appellant’s mitigation, reduced his death sentence to seven (7) years imprisonment.
In his mitigation, he submitted that the ingredient of being in company of others was not proved, the injuries sustained by the complainant were minor and that the stolen items were modest. He argued that, therefore, it could not be contended that the offence herein was committed in circumstances that could be described as worst instances and/or that he was the worst offender.
He contended that he was arrested in his twenties and had no family. He asserted that he had spent twenty-four (24) years in prison and if his sentence was sustained it meant that he would die without a family of his own contrary to Article 19(2) of the Constitution of Kenya, 2010. He added that he was reformed, rehabilitated and socially re-adapted. He pointed out that as he had now attained skills in masonry, carpentry and Joinery Grades I, II, & III, he was ready to be integrated back into the community and use the vocational skills to earn a living instead of robbing people. He sought for the leniency of court.
On its part, the Respondent submitted that the sentence meted out to the Applicant was lawful considering the nature of the case. In this regard, it placed reliance on the case of Republic vs Jagani & Another (2001) KLR 590 where it was held that the purpose of the sentence was to assist in rehabilitation of offenders by providing for reparation for harm done to victims in particular and to society in general.
It argued that this court lacked the jurisdiction to review the Applicant’s sentence as the Applicant had already appealed to this court. It invoked Article 165(3) and (6) of the Constitution and cited the case of John Kagunda Kariuki vs Republic[2019]eKLR where it was held that as the applicant’s appeal had already been heard by the High Court, he could not return to the High Court for a review of the sentence imposed and that he was at liberty to make an argument for reduced sentence at the Court of Appeal.
It further invoked Section 362 and 364 of the Criminal Procedure Code and asserted that the power of the high court on review were to be exercised only over subordinate courts and not over the High Court with respect to its own decisions. It added that a convicted person could not appeal and at the same time seek review. It urged the court to dismiss the Applicant’s application herein for lack of merit.
In the case of Mbugua & 6 Others vs Attorney General & 3 Others (Constitutional Petition E002 & E003 of 2024 (Consolidated)) [2025] KEHC 1248 (KLR) (24 February 2025) (Judgment) , this very court held that it was discriminatory to deny offenders who had been convicted of the offence of robbery with violence and attempted robbery with violence the right to have their mitigation during trial considered, while the non-capital offenders enjoyed that right.
It recognised that under Article 27(1) of the Constitution of Kenya, persons who had been convicted for robbery with violence and attempted robbery with violence were also equal before the law, they had a right to be protected before the law and had to derive equal benefit from the law as the non- capital offenders.
The court’s decision was in line with the directions of the Supreme Court on 6 th July 2021 in Francis Karioko Muruatetu and Another vs Republic [2017] eKLR (commonly now known as Muruatetu II) that the question of constitutionality of the death sentence in robbery with violence cases ought to commence at the High Court and thereafter escalated to the Court of Appeal, if necessary. It rendered itself as follows:-
“46. To clear the confusion that exists with regard to the mandatory death sentence in offences other than murder, we direct in respect of other capital offences such as treason under section 40 (3), robbery with violence under section 296 (2), and attempted robbery with violence under section 297 (2) of the Penal Code, that a challenge on the constitutional validity of the mandatory death penalty in such cases should be properly filed, presented, and fully argued before the High Court and escalated to the Court of Appeal, if necessary, at which a similar outcome as that in this case may be reached. Muruatetu as it now stands cannot directly be applicable to those cases (emphasis court).”
In the case of Ramadhan & 8 others v General & another (Petition 5 of 2022 & Constitutional Petition 6 of 2022 (Consolidated)) [2024] KEHC 1173 (KLR) (6 February 2024) (Judgment) , Sewe J looked at the mandatory nature of the death sentence under Section 296(2) and 296(2) of the Penal Code and declared it unconstitutional. She further directed that the petitioners be presented before the respective sentencing courts for sentence re-hearing upon appropriate applications
In the case of Mbugua & 6 Others vs The Hon Attorney General (Supra) as consolidated with Alfred Eyase Kinamundu & 2 Others vs the Hon Attorney General & Others (Supra), this court looked at the aspect of re-sentencing of persons who had been convicted under Section 296(2) and Section 297(2) of the Penal Code and rendered itself as follows:-
“67. The purpose of incarceration is rehabilitation and reformation of prisoners. It was psychological torture for a prison to take numerous courses to improve himself or herself in prison but never use those skills in the society. Indeed, learning of skills had the purpose of easing the integration of prisoners back into the society. Life imprisonment denied convicts who were on life sentence hope for a better future. It was discriminatory that all convicts had hope of going home other than those who had been convicted of the offence of robbery with violence and attempted robbery with violence. There had to be a determinate period within which a person had to atone for their sins.
The long indeterminate incarceration while undergoing rehabilitation programs without the prospect of being released was in the considered opinion of this court a blatant violation of the Petitioners’ right to dignity contrary to Article 28 of the Constitution of Kenya….
For those who had been convicted and did not have the benefit of mitigating before being sentenced such as the Petitioners herein, they had a reprieve in Article 50(2) of the Constitution of Kenya which sets out some of the principles that were considered to constitute fair trial. One of these principles was the right to lodge an appeal or apply for review in a higher court, if convicted as stipulated in Article 50 (2) (q )) of the Constitution of Kenya.
Such mitigation, which would include the behaviour while in prison and proof of reformation and possibility of reintegration in the society which would enable an appellate and/or review court have a holistic view of the case. During appeal or review of a case, a higher court would have had all the facts and circumstances of the accused on record to enable it assess the appropriate sentence in case there was merit for a sentence reduction.”
In this regard, it found that applicants seeking re-sentencing ought to file documents to support their mitigating factors. These documents could include certificates of programmes they had undergone in prison leading to their rehabilitation and recommendation letters from the In-charges of prisons.
While considering the present application for re-sentencing, this court was alive to the fact that the Court of Appeal upheld the death sentence that was meted out against the Applicant herein. It was the mandatory nature of the death sentence that this court found to have been unconstitutional and found that persons who had been convicted for the offence of robbery with violence and attempted robbery ought to be allowed to mitigate and be re-sentenced.
This court noted that appellants who included Francis Karioko Muruatetu in the Court of Appeal case of Gachanja & 7 Others (Criminal Appeal 51 of 2004) [2011] KECA 402 (KLR) (20 May 2011) Judgment were re-sentenced by the High Court on 16 th December 2019 in Misc Criminal No 394 of 2017 consolidated with Misc Criminal Applications Nos 614, 28, 560, 589, 590 and 586 of 2018.
In the same vein, as the Court of Appeal had not yet dealt with the constitutionality of the mandatory nature of death sentence in respect of the Applicant herein, this court therefore found and held that it would not be violating the doctrine of stare decisis if it determined that it could allow applicants seeking re-sentence to mitigate and then re-sentence them in line with the case of Mbugua & 6 Others vs The Hon Attorney General (Supra) as consolidated with Alfred Eyase Kinamundu & 2 Others vs the Hon Attorney General & Others (Supra) and Ramadhan & 8 others v General & another (Supra) despite the Court of Appeal having upheld their death sentence on appeal.
In this regard therefore, this court recognised that as it had both original and appellate jurisdiction to hear criminal and civil cases as provided in Article 165(3)(a) of the Constitution of Kenya and further it could review the decision of the lower court as provided under Article 50 (2) (q ) of the Constitution of Kenya, it did not have to send the lower court file back to the lower court for re-sentencing.
To avoid further delays in this matter, this court found it prudent to consider the mitigation and re-sentencing of the Applicant herein as it already had proceedings of the Trial Court. In reviewing the sentence herein, this court was interested to establish if the Applicant herein had been reformed with a view to being re-integrated in the society.
Although the Applicant had furnished this court with copies of his Certificates and it was necessary for him to file a Recommendation letter by the Officer-In- Charge of Kisumu Maximum Prison and the court obtain a Pre-Sentence Report to enable the court make an informed decision regarding his prayer for re-sentencing.
DISPOSITION
For the foregoing reasons, the upshot of this court’s decision was that the Applicant’s Notice of Motion application that was dated 4 th April 2024 and filed on 13 th March 2024 was merited and the same be and is hereby allowed in the following terms:- THAT the Applicant to provide the letter of Recommendation from the Officer in Charge Kisumu Maximum Prison by 28 th November 2025.
THAT the Probation Office file a Pre-Sentence Report by 28 th November 2025.
THAT the Applicant be and is hereby directed to appear before this court for mitigation and sentencing on 17 th December 2025.
It is so ordered.
DATED and DELIVERED at VIHIGA this 29 th day of October 2025
J. KAMAU
JUDGE
'