A. Introduction
1. Before the court is an application for resentencing by Anne Waithera Macharia, a convict serving a sentence for the offence of murder.
2. The application is brought against an unusual procedural background. The applicant was convicted and sentenced by the High Court.
3. She subsequently appealed against both conviction and sentence. Her appeal was dismissed by the Court of Appeal in a judgment delivered after the Supreme Court had decided Francis Karioko Muruatetu & Another v Republic [2017] eKLR .
4. The applicant nevertheless seeks a fresh sentencing hearing. She relies on several considerations. She points to her advanced age, deteriorating health, rehabilitation, and the lengthy period she has spent in custody. She also invokes the constitutional principles developed in Muruatetu (Supra) and section 333(2) of the Criminal Procedure Code.
5. The application, however, rests principally on another development. One of her co-convicts, Daniel Njoroge Kimotho, successfully moved the High Court through a miscellaneous application and obtained an order substituting the death sentence with a custodial sentence. See Misc. App. No. E269 of 2024.
6. The applicant contends that the court should take judicial notice of that development and extend similar relief to her.
7. That argument gives rise to an important question for consideration by this court which is; Where two offenders are convicted in the same proceedings and they both unsuccessfully pursue a joint appeal, and are subjected to the same sentence, does the subsequent resentencing of one offender entitle the other to similar treatment?
8. That question renders it necessary for the court to examine several competing principles: the finality of litigation, equality before the law, the individualized nature of sentencing, and the contours on jurisdiction established by the Constitution between the courts.
B. Procedural Background
9. The applicant was charged with the offence of murder contrary to sections 203 and 204 of the Penal Code.
10. Following a trial before the High Court in HCCR. No.97 of 2006 , she was convicted and sentenced to death.
11. She appealed against both conviction and sentence vide Criminal Appeal No. 178 of 2016. The Court of Appeal dismissed the appeal in its entirety.
12. It is important to highlight that the appellate judgment was delivered after the Supreme Court's decision in the Muruatetu case which allowed persons hitherto convicted and sentenced to death by the courts on account of the death sentence being mandatory, to approach the trial courts for resentencing since the mandatory nature of the death sentence had been declared unconstitutional.
13. The Court of Appeal therefore had the benefit of the changed legal framework governing sentencing on the capital offence of murder.
14. The appellate court considered the mitigation advanced by the appellants and expressly declined to remit the matter to the High Court for resentencing. The death sentence was consequently affirmed.
15. Several years later, one of the applicant's co-convicts, Daniel Njoroge Kimotho , instituted separate resentencing application before the High Court. The matter was heard by the Hon Mr. Justice Bahati Mwamuye who allowed the application and the applicants co-convict was released since the High Court substituted the death sentence with a custodial sentence of twenty-three years commencing from the date of arrest.
16. The applicant subsequently filed the present resentencing application.
C. The Applicant's Case
17. The applicant submitted that she has remained in custody for over two decades.
18. She further stated that she is elderly and suffers from various medical conditions associated with advanced age.
19. She went on to add that she had undergone rehabilitation and no longer presents a risk to society.
20. The applicant invoked the Muruatetu decision and argued that the jurisprudence laid by the case entitles her to a fresh sentencing hearing.
21. She also relied on section 333(2) of the Criminal Procedure Code.
22. According to her, the resentencing of Daniel Njoroge Kimotho who was convicted with her on account of the same matter should persuade this court that this is a fit case for resentencing.
23. The applicant’s contention was that two offenders convicted in the same proceedings should not be subjected to fundamentally different sentencing outcomes. She therefore urged the court to adopt the approach taken in by the Hon Mwamuye J in resentencing her co-convict.
D. The Respondent's Case
24. The respondent opposed the application. The respondent argued that the High Court lacked jurisdiction to revisit a sentence that was expressly considered and affirmed by the Court of Appeal.
25. It was further submitted that the issue of resentencing was conclusively determined during the appellate proceedings.
26. According to the respondent, the present proceedings amount to an attempt to reopen a matter that has already been finally adjudicated by this court and the Court of Appeal thus this court should simply down its tools.
E. Issues for Determination
27. The following issues arise for determination:
a. Whether this court has jurisdiction to entertain the application.
b. Whether the resentencing of Daniel Njoroge Kimotho, the applicants co-convict creates a right to parity in sentencing.
c. Whether Muruatetu and section 333(2) authorize this court to reopen the applicant's sentence.
F. Analysis And Determination
A. Whether this Court Has Jurisdiction to entertain the Application
28. It cannot be gainsaid that jurisdiction is the foundational question in every judicial proceeding. Before a court interrogates the facts, weighs the evidence, or examines the merits of the dispute before it, it must first satisfy itself that it possesses the legal authority to entertain the matter.
29. The Supreme Court in Samuel Kamau Macharia & Another v Kenya Commercial Bank Ltd & 2 Others [2012] eKLR underscored this principle in unequivocal terms when it held:
"A court's jurisdiction flows from either the Constitution or legislation or both. Thus, a court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law."
30. The constitutional design of Kenya's judicial system establishes a clear distribution of authority between the superior courts. The High Court principally exercises unlimited original jurisdiction, while the Court of Appeal exercises appellate jurisdiction. This arrangement is neither arbitrary nor merely cosmetic. It reflects a deliberate constitutional choice intended to maintain an orderly and coherent judicial system.
31. The distinction between original and appellate jurisdiction serves important institutional objectives. It preserves the hierarchical structure of the courts, promotes legal certainty, and ensures that disputes are subjected to the appropriate adjudicative process before reaching the appellate forum. Equally important, it safeguards the principle of finality in litigation by ensuring that each court performs the function constitutionally assigned to it. The system ensures that there is judicial harmony in decision making through the meticulous application of the doctrine of stare decisis.
32. The courts by employing that doctrine avoid conflicting legal positions being taken by different courts on a similar matter thereby creating unwarranted confusion and chaotic unpredictable outcomes that would leave litigants unsure of the consistency and predictability of our courts.
33. If that were to be allowed to happen the judiciary would suffer public ridicule and there would certainly be a great deficiency of trust by the public on the institution of the judiciary.
34. In Speaker of the National Assembly v James Njenga Karume (1992) eKLR , the Court of Appeal expressly observed that the existence of original jurisdiction upon a court does not authorize the usurpation of the jurisdiction vested in another court.
35. The applicant's appeal was determined after the Supreme Court delivered its decision in Muruatetu .
36. The constitutional challenge to mandatory capital punishment was therefore neither unavailable nor unknown.
37. The question of sentencing did not escape the attention of the Court of Appeal. The appellate court expressly considered the mitigation advanced on behalf of each of the appellants. It also addressed the invitation to remit the matter to the High Court for a sentence rehearing in light of the Supreme Court's decision in Francis Karioko Muruatetu & Another v Republic [2017] eKLR.
38. After undertaking that exercise, the Court of Appeal declined to remit the matter for resentencing.
39. Instead, it held that the mitigation tendered by the appellants had already been fully considered and that the circumstances of the case did not warrant a sentence rehearing.
40. The Court of Appeal's had this to say at pages 26 and 27 of the judgment:
"As to the sentence of death imposed, we note that it was based on the learned Judge's application of the Mwaura (supra) decision to the effect that the death sentence is mandatory for the offence of murder. That decision was binding upon the learned Judge and she cannot be faulted for having followed it.
We are now guided by the Supreme Court's decision in Francis Karioko Muruatetu & Another v Republic [2017] eKLR that Mwaura is no longer good law and that a mandatory sentence of death is unconstitutional. That is not to say that there are no instances when the sentence is merited.
From the record, extensive mitigation was offered for each of the appellants by their counsel then on record. They each expressed remorse or spoke of how they were first offenders and some were ailing.
The irony of it may have been lost to counsel but Waithera's mitigation commenced with 'she is 56 years old, a widow with 4 children... the 7th accused [Mwangi] is her 2nd born son. She prays for a non-custodial sentence.' We think, with respect, that it was cynical of Waithera and her counsel to seek sympathy from the court on account of her unfamiliar status of a widow when she brought it upon herself.
We have also given full consideration to the mitigation offered for each of the appellants. Other than proceeding from the premise that there was no alternative sentence before she imposed the sentence of death, we do not see how the learned Judge can be said to have erred.
Because the full mitigation is on record, we do not accede to the request that the file be remitted to the High Court for a sentence rehearing ."
41. The applicant now invites this court to undertake the very exercise that the Court of Appeal declined to authorize. Respectfully, that invitation cannot be countenanced by this court for it tantamount to urging this court to sit on appeal on a decision of the Court of Appeal. This court cannot fathom entertaining such a thought let alone embarking on such an exercise no matter how pitiful the case of the applicant looks.
B. Whether the Resentencing of Daniel Njoroge Kimotho Creates a Right to Parity
Sentencing Disparity and the Principle of Parity
41. The applicant and Daniel Njoroge Kimotho were co-convicts there cannot be any denial of that fact. They were tried jointly, convicted in the same proceedings, and their appeals were determined through a single judgment of the Court of Appeal.
42. Despite that common procedural history, they presently occupy different positions. One offender is serving a determinate custodial sentence, while the other remains subject to a sentence of death. The disparity is self-evident. It is neither a matter that this court can ignore nor one that it should disregard.
43. The principle of parity in sentencing is important. Courts should strive to avoid unjustified disparities between offenders whose circumstances are substantially similar.
44. Consistency in sentencing promotes equality before the law and reinforces public confidence in the administration of justice. As the Supreme Court observed in Francis Karioko Muruatetu & Another v Republic [2017] eKLR, sentencing must be guided by rational and objective principles that ensure fairness and proportionality.
45. However, consistency should not be confused with uniformity. Sentencing is not a mechanical exercise. It is a judicial function that requires an individualized assessment of the offender and the offence. The role played by the individual offender in the commission of a crime is an important factor in assessing moral blameworthiness of a particular accused.
46. The law does not guarantee identical outcomes in the nature of sentences but emphasizes on proportionality. The law guarantees the equal application of legal principles that guide courts in sentencing of offenders.
47. That distinction is critical because parity does not require courts to impose equivalent sentences in every case involving co-offenders.
48. The applicant's argument proceeds on the assumption that the resentencing of one offender necessarily entitles another offender to similar relief. That proposition cannot be sustained.
49. In Banks on Sentence (Vol. 1, 9th ed.) at pages 1-2, 1-3, and 1-4 , the learned authors examine the principles governing disparity and parity in sentencing and identify two applicable tests. The first recognizes that leniency shown to one offender does not, without more, justify a reduction in the sentence imposed upon a co-offender. The second requires the court to determine whether the disparity is so substantial as to render the sentence manifestly unfair.
50. The court in making that assessment undertakes an objective assessment of the circumstances of a given case. Banks on Sentence reproduces the decision in R v Martin [2012] EWCA Crim 1908 as one of the leading authorities on the point. The Court stated:
"What is completely clear is that apparent leniency to one offender is no ground for reducing a proper sentence on another."
51. So that if this court had jurisdiction to entertain this application, it would not necessarily follow that the court would grant the applicant a similar sentence to that which was imposed on the co-convict.
52. A court undertaking a resentencing exercise must determine whether it has the requisite jurisdiction to undertake the resentencing as well as determine whether the sentence before it is lawful, proportionate, and just. The inquiry does not begin and end with the sentence imposed upon a co-offender.
53. The question is whether the disparity is so unfair as to undermine the integrity of the sentencing process. Only then can the principle of parity be invoked to justify judicial intervention.
54. This court has already determined that it lacks jurisdiction to entertain the application thus the court would not hesitate downing its tools and reminding the applicant that he who embarks on a mission to extinguish the life of another must be fully prepared for the consequences of his or her action notwithstanding the age of the offender.
55. The taking of human life in circumstances such as the one obtaining in this matter is something that must be deprecated by all and punishment for such actions should reflect the gravity of the offence and also communicate to the accused and the general public that no one has the licence to take the life of another no matter the excuse. Adultery or neglect of a family must never be met with death being visited upon the person accused of such. The sooner some people realize that walking away from a troubled marriage is fashionable the better. A marriage should never be a death trap or sentence.
56. The applicant in this matter acting together with others took the life of the deceased. Her fervent plea that she has reformed notwithstanding, this court cannot extend its mercy to her by embarking on an unlawful review of the decision of the Court of Appeal. The decision by Mwamuye J in regard to her co-convict does not bind this court.
57. The applicant was not a mere bystander during the killing of the deceased swept along by events beyond her control. The evidence, as accepted by the trial court and upheld by the Court of appeal, demonstrates that she was principally involved in the planning of the murder of her late husband, David Macharia.
58. The crime was not the product of a momentary lapse, nor an impulsive act committed in the heat of passion. It bore the hallmarks of deliberation, preparation and execution. The manner in which the deceased met his death was, by any measure, horrendous, barbaric and most savage in nature. The applicant betrayed the deceased by organizing the murder.
59. The applicant should realize that whatever the grievance she may have had against the deceased, there were better ways of dealing with such grievance but not to butcher her own husband.
60. The applicant has come before me at a time when country is grappling with increasing wave of domestic violence involving married couples and even cases of persons who have embraced the new phenomenon of online dating which has times left victims mutilated in the hands of their killers. Man has lost respect for the dead to a point that it is not just enough to kill; people are dismembering dead bodies.
61. It is during moments like this that the court who is the custodian of public interest must come out strongly and remind would be offenders that it shall not be business as usual when you take the life of another.
62. Accordingly, notwithstanding the advanced age of the applicant, this court cannot come to her aid and even though the court has no jurisdiction to entertain the resentencing application, this court would not in any event have varied the sentence just in case am wrong on the issue of jurisdiction.
63. The sentence is lawful, proportionate and reasonable in the circumstances of the case,
64. Let the applicant continue serving the same for she consciously and out pure selfishness took the life of her husband she deserves no mercy from this court.
65. The application is dismissed.
66. It is so ordered.
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1. Before the court is an application for resentencing by Anne Waithera Macharia, a convict serving a sentence for the offence of murder.
2. The application is brought against an unusual procedural background. The applicant was convicted and sentenced by the High Court.
3. She subsequently appealed against both conviction and sentence. Her appeal was dismissed by the Court of Appeal in a judgment delivered after the Supreme Court had decided Francis Karioko Muruatetu & Another v Republic [2017] eKLR .
4. The applicant nevertheless seeks a fresh sentencing hearing. She relies on several considerations. She points to her advanced age, deteriorating health, rehabilitation, and the lengthy period she has spent in custody. She also invokes the constitutional principles developed in Muruatetu (Supra) and section 333(2) of the Criminal Procedure Code.
5. The application, however, rests principally on another development. One of her co-convicts, Daniel Njoroge Kimotho, successfully moved the High Court through a miscellaneous application and obtained an order substituting the death sentence with a custodial sentence. See Misc. App. No. E269 of 2024.
6. The applicant contends that the court should take judicial notice of that development and extend similar relief to her.
7. That argument gives rise to an important question for consideration by this court which is; Where two offenders are convicted in the same proceedings and they both unsuccessfully pursue a joint appeal, and are subjected to the same sentence, does the subsequent resentencing of one offender entitle the other to similar treatment?
8. That question renders it necessary for the court to examine several competing principles: the finality of litigation, equality before the law, the individualized nature of sentencing, and the contours on jurisdiction established by the Constitution between the courts.
B. Procedural Background
9. The applicant was charged with the offence of murder contrary to sections 203 and 204 of the Penal Code.
10. Following a trial before the High Court in HCCR. No.97 of 2006 , she was convicted and sentenced to death.
11. She appealed against both conviction and sentence vide Criminal Appeal No. 178 of 2016. The Court of Appeal dismissed the appeal in its entirety.
12. It is important to highlight that the appellate judgment was delivered after the Supreme Court's decision in the Muruatetu case which allowed persons hitherto convicted and sentenced to death by the courts on account of the death sentence being mandatory, to approach the trial courts for resentencing since the mandatory nature of the death sentence had been declared unconstitutional.
13. The Court of Appeal therefore had the benefit of the changed legal framework governing sentencing on the capital offence of murder.
14. The appellate court considered the mitigation advanced by the appellants and expressly declined to remit the matter to the High Court for resentencing. The death sentence was consequently affirmed.
15. Several years later, one of the applicant's co-convicts, Daniel Njoroge Kimotho , instituted separate resentencing application before the High Court. The matter was heard by the Hon Mr. Justice Bahati Mwamuye who allowed the application and the applicants co-convict was released since the High Court substituted the death sentence with a custodial sentence of twenty-three years commencing from the date of arrest.
16. The applicant subsequently filed the present resentencing application.
C. The Applicant's Case
17. The applicant submitted that she has remained in custody for over two decades.
18. She further stated that she is elderly and suffers from various medical conditions associated with advanced age.
19. She went on to add that she had undergone rehabilitation and no longer presents a risk to society.
20. The applicant invoked the Muruatetu decision and argued that the jurisprudence laid by the case entitles her to a fresh sentencing hearing.
21. She also relied on section 333(2) of the Criminal Procedure Code.
22. According to her, the resentencing of Daniel Njoroge Kimotho who was convicted with her on account of the same matter should persuade this court that this is a fit case for resentencing.
23. The applicant’s contention was that two offenders convicted in the same proceedings should not be subjected to fundamentally different sentencing outcomes. She therefore urged the court to adopt the approach taken in by the Hon Mwamuye J in resentencing her co-convict.
D. The Respondent's Case
24. The respondent opposed the application. The respondent argued that the High Court lacked jurisdiction to revisit a sentence that was expressly considered and affirmed by the Court of Appeal.
25. It was further submitted that the issue of resentencing was conclusively determined during the appellate proceedings.
26. According to the respondent, the present proceedings amount to an attempt to reopen a matter that has already been finally adjudicated by this court and the Court of Appeal thus this court should simply down its tools.
E. Issues for Determination
27. The following issues arise for determination:
a. Whether this court has jurisdiction to entertain the application.
b. Whether the resentencing of Daniel Njoroge Kimotho, the applicants co-convict creates a right to parity in sentencing.
c. Whether Muruatetu and section 333(2) authorize this court to reopen the applicant's sentence.
F. Analysis And Determination
A. Whether this Court Has Jurisdiction to entertain the Application
28. It cannot be gainsaid that jurisdiction is the foundational question in every judicial proceeding. Before a court interrogates the facts, weighs the evidence, or examines the merits of the dispute before it, it must first satisfy itself that it possesses the legal authority to entertain the matter.
29. The Supreme Court in Samuel Kamau Macharia & Another v Kenya Commercial Bank Ltd & 2 Others [2012] eKLR underscored this principle in unequivocal terms when it held:
"A court's jurisdiction flows from either the Constitution or legislation or both. Thus, a court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law."
30. The constitutional design of Kenya's judicial system establishes a clear distribution of authority between the superior courts. The High Court principally exercises unlimited original jurisdiction, while the Court of Appeal exercises appellate jurisdiction. This arrangement is neither arbitrary nor merely cosmetic. It reflects a deliberate constitutional choice intended to maintain an orderly and coherent judicial system.
31. The distinction between original and appellate jurisdiction serves important institutional objectives. It preserves the hierarchical structure of the courts, promotes legal certainty, and ensures that disputes are subjected to the appropriate adjudicative process before reaching the appellate forum. Equally important, it safeguards the principle of finality in litigation by ensuring that each court performs the function constitutionally assigned to it. The system ensures that there is judicial harmony in decision making through the meticulous application of the doctrine of stare decisis.
32. The courts by employing that doctrine avoid conflicting legal positions being taken by different courts on a similar matter thereby creating unwarranted confusion and chaotic unpredictable outcomes that would leave litigants unsure of the consistency and predictability of our courts.
33. If that were to be allowed to happen the judiciary would suffer public ridicule and there would certainly be a great deficiency of trust by the public on the institution of the judiciary.
34. In Speaker of the National Assembly v James Njenga Karume (1992) eKLR , the Court of Appeal expressly observed that the existence of original jurisdiction upon a court does not authorize the usurpation of the jurisdiction vested in another court.
35. The applicant's appeal was determined after the Supreme Court delivered its decision in Muruatetu .
36. The constitutional challenge to mandatory capital punishment was therefore neither unavailable nor unknown.
37. The question of sentencing did not escape the attention of the Court of Appeal. The appellate court expressly considered the mitigation advanced on behalf of each of the appellants. It also addressed the invitation to remit the matter to the High Court for a sentence rehearing in light of the Supreme Court's decision in Francis Karioko Muruatetu & Another v Republic [2017] eKLR.
38. After undertaking that exercise, the Court of Appeal declined to remit the matter for resentencing.
39. Instead, it held that the mitigation tendered by the appellants had already been fully considered and that the circumstances of the case did not warrant a sentence rehearing.
40. The Court of Appeal's had this to say at pages 26 and 27 of the judgment:
"As to the sentence of death imposed, we note that it was based on the learned Judge's application of the Mwaura (supra) decision to the effect that the death sentence is mandatory for the offence of murder. That decision was binding upon the learned Judge and she cannot be faulted for having followed it.
We are now guided by the Supreme Court's decision in Francis Karioko Muruatetu & Another v Republic [2017] eKLR that Mwaura is no longer good law and that a mandatory sentence of death is unconstitutional. That is not to say that there are no instances when the sentence is merited.
From the record, extensive mitigation was offered for each of the appellants by their counsel then on record. They each expressed remorse or spoke of how they were first offenders and some were ailing.
The irony of it may have been lost to counsel but Waithera's mitigation commenced with 'she is 56 years old, a widow with 4 children... the 7th accused [Mwangi] is her 2nd born son. She prays for a non-custodial sentence.' We think, with respect, that it was cynical of Waithera and her counsel to seek sympathy from the court on account of her unfamiliar status of a widow when she brought it upon herself.
We have also given full consideration to the mitigation offered for each of the appellants. Other than proceeding from the premise that there was no alternative sentence before she imposed the sentence of death, we do not see how the learned Judge can be said to have erred.
Because the full mitigation is on record, we do not accede to the request that the file be remitted to the High Court for a sentence rehearing ."
41. The applicant now invites this court to undertake the very exercise that the Court of Appeal declined to authorize. Respectfully, that invitation cannot be countenanced by this court for it tantamount to urging this court to sit on appeal on a decision of the Court of Appeal. This court cannot fathom entertaining such a thought let alone embarking on such an exercise no matter how pitiful the case of the applicant looks.
B. Whether the Resentencing of Daniel Njoroge Kimotho Creates a Right to Parity
Sentencing Disparity and the Principle of Parity
41. The applicant and Daniel Njoroge Kimotho were co-convicts there cannot be any denial of that fact. They were tried jointly, convicted in the same proceedings, and their appeals were determined through a single judgment of the Court of Appeal.
42. Despite that common procedural history, they presently occupy different positions. One offender is serving a determinate custodial sentence, while the other remains subject to a sentence of death. The disparity is self-evident. It is neither a matter that this court can ignore nor one that it should disregard.
43. The principle of parity in sentencing is important. Courts should strive to avoid unjustified disparities between offenders whose circumstances are substantially similar.
44. Consistency in sentencing promotes equality before the law and reinforces public confidence in the administration of justice. As the Supreme Court observed in Francis Karioko Muruatetu & Another v Republic [2017] eKLR, sentencing must be guided by rational and objective principles that ensure fairness and proportionality.
45. However, consistency should not be confused with uniformity. Sentencing is not a mechanical exercise. It is a judicial function that requires an individualized assessment of the offender and the offence. The role played by the individual offender in the commission of a crime is an important factor in assessing moral blameworthiness of a particular accused.
46. The law does not guarantee identical outcomes in the nature of sentences but emphasizes on proportionality. The law guarantees the equal application of legal principles that guide courts in sentencing of offenders.
47. That distinction is critical because parity does not require courts to impose equivalent sentences in every case involving co-offenders.
48. The applicant's argument proceeds on the assumption that the resentencing of one offender necessarily entitles another offender to similar relief. That proposition cannot be sustained.
49. In Banks on Sentence (Vol. 1, 9th ed.) at pages 1-2, 1-3, and 1-4 , the learned authors examine the principles governing disparity and parity in sentencing and identify two applicable tests. The first recognizes that leniency shown to one offender does not, without more, justify a reduction in the sentence imposed upon a co-offender. The second requires the court to determine whether the disparity is so substantial as to render the sentence manifestly unfair.
50. The court in making that assessment undertakes an objective assessment of the circumstances of a given case. Banks on Sentence reproduces the decision in R v Martin [2012] EWCA Crim 1908 as one of the leading authorities on the point. The Court stated:
"What is completely clear is that apparent leniency to one offender is no ground for reducing a proper sentence on another."
51. So that if this court had jurisdiction to entertain this application, it would not necessarily follow that the court would grant the applicant a similar sentence to that which was imposed on the co-convict.
52. A court undertaking a resentencing exercise must determine whether it has the requisite jurisdiction to undertake the resentencing as well as determine whether the sentence before it is lawful, proportionate, and just. The inquiry does not begin and end with the sentence imposed upon a co-offender.
53. The question is whether the disparity is so unfair as to undermine the integrity of the sentencing process. Only then can the principle of parity be invoked to justify judicial intervention.
54. This court has already determined that it lacks jurisdiction to entertain the application thus the court would not hesitate downing its tools and reminding the applicant that he who embarks on a mission to extinguish the life of another must be fully prepared for the consequences of his or her action notwithstanding the age of the offender.
55. The taking of human life in circumstances such as the one obtaining in this matter is something that must be deprecated by all and punishment for such actions should reflect the gravity of the offence and also communicate to the accused and the general public that no one has the licence to take the life of another no matter the excuse. Adultery or neglect of a family must never be met with death being visited upon the person accused of such. The sooner some people realize that walking away from a troubled marriage is fashionable the better. A marriage should never be a death trap or sentence.
56. The applicant in this matter acting together with others took the life of the deceased. Her fervent plea that she has reformed notwithstanding, this court cannot extend its mercy to her by embarking on an unlawful review of the decision of the Court of Appeal. The decision by Mwamuye J in regard to her co-convict does not bind this court.
57. The applicant was not a mere bystander during the killing of the deceased swept along by events beyond her control. The evidence, as accepted by the trial court and upheld by the Court of appeal, demonstrates that she was principally involved in the planning of the murder of her late husband, David Macharia.
58. The crime was not the product of a momentary lapse, nor an impulsive act committed in the heat of passion. It bore the hallmarks of deliberation, preparation and execution. The manner in which the deceased met his death was, by any measure, horrendous, barbaric and most savage in nature. The applicant betrayed the deceased by organizing the murder.
59. The applicant should realize that whatever the grievance she may have had against the deceased, there were better ways of dealing with such grievance but not to butcher her own husband.
60. The applicant has come before me at a time when country is grappling with increasing wave of domestic violence involving married couples and even cases of persons who have embraced the new phenomenon of online dating which has times left victims mutilated in the hands of their killers. Man has lost respect for the dead to a point that it is not just enough to kill; people are dismembering dead bodies.
61. It is during moments like this that the court who is the custodian of public interest must come out strongly and remind would be offenders that it shall not be business as usual when you take the life of another.
62. Accordingly, notwithstanding the advanced age of the applicant, this court cannot come to her aid and even though the court has no jurisdiction to entertain the resentencing application, this court would not in any event have varied the sentence just in case am wrong on the issue of jurisdiction.
63. The sentence is lawful, proportionate and reasonable in the circumstances of the case,
64. Let the applicant continue serving the same for she consciously and out pure selfishness took the life of her husband she deserves no mercy from this court.
65. The application is dismissed.
66. It is so ordered.
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