Criminal Misc. Application No. E069 of 2025 Page 1 of 7
REPUBLIC OF KENYA
IN THE HIGH COURT AT VIHIGA
CRIMINAL MISC. APP. NO. E069 OF 2025
IN THE MATTER OF ARTICLES 25(c), 26(1), 27(1)(2), 28, 29(a)(d)(f),
50(2)(p)(q), 159,165(3)(a)(b) OF THE CONSTITUTION OF KENYA
AND
IN THE MATTER OF SECTIONS 216 AND 329 OF THE CRIMINAL
PROCEDURE CODE CAP 75 LAWS OF KENYA
AND
IN THE MATTER OF SECTION 203 AS READ WITH SECTION 204 OF THE
PENAL CODE CAP 63 LAWS OF KENYA
AND
IN THE MATTER OF PARAGRAPH 4.8.14 OF THE JUDICIARY SENTENCING
POLICY GUIDELINES, 2023
AND
IN THE MATTER OF THE SUPREME COURT IN MURUATETU & ANOTHER V
REPUBLIC; KATIBA INSTITUTE & 5 OTHERS (AMICUS CURIAE) [2017] KESC
2 (KLR)
AND
IN THE MATTER OF THE HIGH COURT IN HCCRC NO 37 OF 2014 AT
KAKAMEGA
ANTHONY KHANYAHA SITUETI………………………….……………….APPLICANT
VERSUS
DIRECTOR OF PUBLIC PROSECUTIONS…………………………….RESPONDENT
Coram: Before Justice R. Nyakundi
Leina Davies for the State
RULING
1. Before this Court is notice of motion dated 25th November 2025, the Applicant
seeks the following orders:
a. THAT, may this honourable Court be pleased to hear and determine this
Petition expeditiously.
Criminal Misc. Application No. E069 of 2025 Page 2 of 7
b. THAT, this honourable Court be pleased to substitute the life sentence which
the Applicant is serving after being commuted from DEATH sentence by H.E
the President with a definite lenient sentence.
c. THAT, this honourable Court be pleased to issue an order that the definite
sentence as substituted to run from the date he was arrested on 7.07.2014
pursuant to the provisions of Section 333(2) of the Criminal Procedure Code.
d. Or any other order which the honourable Court deems fit in the interest of
justice.
2. Which application is based on the following grounds:
a. THAT, the provisions of paragraph 4.8.14 of the Judiciary Sentencing Policy
Guidelines, 2023 provides that all convicts as specified in the relevant
instructing instrument qualify for resentencing. In the case of murder
convicts:
(i) All offenders convicted of murder who have been subject to the
mandatory death penalty and desire to be heard on sentence as at the
time of the Supreme Court’s decision (14 December 2017).
(ii) All offenders sentenced to death for murder after the decision in
Muruatetu but without regard to or compliance with the Court's
declaration (i.e., not taken into account mitigating factors)
b. THAT, the Applicant was charged with the offence of murder contrary to
Section 203as read with Section 204 of the Penal Code in HCCR No 37 of
2014 at Kakamega High Court and sentenced to suffer DEATH on the 17th
day of November 2017.
c. THAT, the Applicant NEVER appealed to the Court of Appeal and has no
interest in doing so hence the present application.
d. THAT, the Applicant's death sentence was eventually commuted to LIFE
imprisonment by H.E the president.
e. THAT, the offence herein was committed within the jurisdiction of Vihiga
High Court but at the time of the trial, the High Court station at Vihiga had
not been established.
Criminal Misc. Application No. E069 of 2025 Page 3 of 7
f. THAT, the Applicant has been in lawful custody for the last eleven (11) years
all the while serving an indeterminate sentence.
g. THAT, the Supreme Court in Muruatetu & another v Republic; Katiba
Institute &5 others (Amicus Curiae) [2017] KESC 2 (KLR) made a declaration
that the mandatory nature of the death penalty as provided for under
Section 203 as read with Section 204 of the Penal Code is unconstitutional.
h. THAT, the Supreme Court gave further directions on the application of the
Muruatetu case in Muruatetu & another v Republic; Katiba Institute & 4
others (Amicus Curiae) [2021] KESC 31 (KLR), where it gave the following
guidelines at paragraph18;
a) The decision of Muruatetu and these guidelines apply only in respect to
sentences of murder under sections 203 and 204 of the Penal Code;
b) The Judiciary Sentencing Policy Guidelines to be revised in tandem with
the new jurisprudence enunciated in Muruatetu;
c) All offenders who have been subject to the mandatory death penalty and
desire to be heard on sentence will be entitled to re-sentencing hearing.
d) Where an appeal is pending before the Court of Appeal, the High Court will
entertain an application for re-sentencing upon being satisfied that the
appeal has been withdrawn
e) In re-sentencing hearing, the Court must record the prosecution's and the
appellant’s submissions under section 329of the Criminal Procedure Code,
as well as those of the victims before deciding on the suitable sentence.
f) An application for re-sentencing arising from a trial before the High Court
can only be entertained by the High Court, which has jurisdiction to do so
and not the subordinate Court.
g) In re-hearing sentence for the charge of murder, both aggravating and
mitigating factors such as the following, will guide the Court;(a) Age of the
offender; (b) Being a first offender;(c) Whether the offender pleaded
guilty;(d) Character and record of the offender; (e) Commission of the
offence in response to gender-based violence; (f) The manner in which the
offence was committed on the victim;(g) The physical and psychological
Criminal Misc. Application No. E069 of 2025 Page 4 of 7
effect of the offence on the victim's family; (h) Remorsefulness of the
offender;(i) The possibility of reform and social re-adaptation of the
offender;(j) Any other factor that the Court considers relevant.
h) Where the appellant has lodged an appeal against sentence alone, the
appellate Court will proceed to receive submissions on re-sentencing.
i) These guidelines will be followed by the High Court and the Court of
Appeal in ongoing murder trials and appeals. They will also apply to
sentences imposed under section 204 of the Penal Code before the decision
in Muruatetu.
j) THAT, the Applicant has been in lawful custody for the past eleven (11)
years all the while serving an indefinite sentence and desires to be heard
on resentencing so that he can the same can be replaced with a definite
sentence which will give him hope of being reintegrated with the society
after completion with the society after completion of his prison term.
k) THAT, for the eleven (11) years the Applicant has been in prison serving
an indeterminate sentence, he has taken full advantage of and positively
embraced the rehabilitation programs offered by the Kenya Prions Service.
l) THAT, the objectives of sentencing outlined under Paragraph 1.3.1 of the
sentencing policy guidelines, 2023; retribution, deterrence, rehabilitation,
restorative justice, community protection, denunciation and reconciliation
have all been achieved.
m) THAT, the only objective of sentencing that is yet to be achieved is
reintegration Courtesy of the indeterminate sentence he is serving, the
Applicant does not have a date which marks the end of his
incarceration/punishment.
n) THAT, indefinite life imprisonment is contrary to the constitution and
cannot be justified given the emerging norms of human decency and
human rights.
o) THAT, the balance between the justification for detention is not necessarily
static and may shift in the course of the sentence. What may be the
Criminal Misc. Application No. E069 of 2025 Page 5 of 7
primary justification for detention at the start of the sentence may not be
so after a lengthy period into the service of the sentence.
p) THAT, it is only by carrying out a review of the justification for continued
detention at an appropriate point in the sentence that the factors or shifts
can be properly evaluated.
q) THAT, the constitution under Article 50(2)(q) provides a convicted person
with the right to apply for a review.
r) THAT, an indeterminate life sentence with no possibility of release is cruel,
degrading and inhuman treatment.
s) THAT, the Applicant has lived in perpetual darkness for the last eleven
(11) years. His children have grown up without a father's love or guidance,
his spouse has lived without her husband's love and support, his kin have
lived without their family member. This is not what human dignity
envisaged by Article 28 of the Constitution.
t) THAT, a jurisprudential trend is eminently palpable where many countries
have explicitly substituted life imprisonment to a term sentence either
through legislation or through judicial interpretation of the Bill of Rights of
the different countries. See Makoni vs Prions Commissioner, CCZ 8/16
Constitutional Application No CCZ 48/15) [2016] ZWCC 8 (13 July 2016).
u) THAT, it is for the Courts to interpret the Bill of Rights broadly and liberally
in order to give effect to the enforcement of the right with an interpretation
which favour the enjoyment of that which is alleged to have been breached
or has been threatened to be breached.
v) THAT, denying the Applicant the benefit of the fundamental rights he is
seeking will be against the principle in Article 28 of the Constitution on the
observation, respect and protection of the Applicant's inherent human
dignity because failure to give him the benefit that was bestowed to the
Applicants in the Muruatetu Case (supra) and will be tantamount to rating
the Applicant to be an inferior human being undeserving of equal treatment
on equal footing with Muruatetu.
Criminal Misc. Application No. E069 of 2025 Page 6 of 7
w) THAT, this honorable Court is vested with sufficient jurisdiction to handle
an application of this nature pursuant to Article 165(3) of the Constitution
as read with Article 23 of the Constitution
Decision
3. The Applicant before this Court was charged and convicted by the Court
concurrent jurisdiction. According to the affidavit the Applicant avers or
assert that he preferred not to file an appeal to the Court of appeal but to
petition this Court to review the sentence of life imprisonment which was
commuted by the State from that of the death penalty imposed by the High
Court.
4. From the facts of this petition, the jurisdiction of the Court falls under Article
50(6) (a) and (b) of the Constitution of Kenya which grants convicted person
the right to petition the High Court for a new trial based on new, compelling
evidence and exhausted appeals. This provision under Article 50(6) of the
Constitution on the other hand provides a convict the right to petition the
High Court for a new/fresh trial. The Article reads as follows:
A person who is convicted of a criminal offence may petition the High
Court for a new trial if:
(a) the person’s appeal, if any, has been dismissed by the highest Court
to which the person is entitled to appeal, or the person did not appeal
within the time allowed for appeal and
(b) new and compelling evidence has become available.
A fresh trail entails a re-constitution of the trial Court to admit the
charge(s) afresh and to re-hear them. The two limbs under Article 50(6)
must be established, before a High Court can order a re-trial.
5. Where the High Court finds that the first limb of Article 50(6) has been
satisfied, it will proceed to interrogate the second limb: whether new and
compelling evidence has become available.
The Supreme Court in Tom Martins Kibisu -vs- Republic [2022]
eKLR describes “new evidence” as “evidence which was not available at
Criminal Misc. Application No. E069 of 2025 Page 7 of 7
the time of trial and which, despite exercise of due diligence, could not
have been availed at the trial”; and “compelling evidence” as “evidence
that would have been admissible at the trial, of high probative value and
capable of belief, and which would probably have led to a different
verdict had it been adduced at trial.”
New and compelling evidence is therefore evidence that on the face of it
is material to, or capable of affecting or varying the subject charges, the
criminal trial process, the conviction entered, or the sentence passed
against an accused person.
6. The petition must be tested within the strict Constitution threshold which
include the following grounds:
Exhaustion of appeals (Article 50(6)(a)): The Applicant’s appeal must
have been dismissed by the highest Court they are entitled to appeal to, or
they must have missed the original window to appeal.
New compelling evidence (Article 50(6)(b)): the evidence must not have
been available at the original trial could not have been found with
reasonable diligence, and is capable of proving innocence or highlighting a
violation of constitutional duties.
7. From this legal perspective the Petitioner has not qualified to have the
grievance in sentence to be subjected to a retrial as even life sentence is a
legal sentence in our legislative scheme as expressed by Parliament. As a
consequence, the petition is dismissed for want of merit. It is so ordered.
DATED AND DELIVERED AT VIHIGA THIS 29TH DAY OF MAY 2026
REPUBLIC OF KENYA
IN THE HIGH COURT AT VIHIGA
CRIMINAL MISC. APP. NO. E069 OF 2025
IN THE MATTER OF ARTICLES 25(c), 26(1), 27(1)(2), 28, 29(a)(d)(f),
50(2)(p)(q), 159,165(3)(a)(b) OF THE CONSTITUTION OF KENYA
AND
IN THE MATTER OF SECTIONS 216 AND 329 OF THE CRIMINAL
PROCEDURE CODE CAP 75 LAWS OF KENYA
AND
IN THE MATTER OF SECTION 203 AS READ WITH SECTION 204 OF THE
PENAL CODE CAP 63 LAWS OF KENYA
AND
IN THE MATTER OF PARAGRAPH 4.8.14 OF THE JUDICIARY SENTENCING
POLICY GUIDELINES, 2023
AND
IN THE MATTER OF THE SUPREME COURT IN MURUATETU & ANOTHER V
REPUBLIC; KATIBA INSTITUTE & 5 OTHERS (AMICUS CURIAE) [2017] KESC
2 (KLR)
AND
IN THE MATTER OF THE HIGH COURT IN HCCRC NO 37 OF 2014 AT
KAKAMEGA
ANTHONY KHANYAHA SITUETI………………………….……………….APPLICANT
VERSUS
DIRECTOR OF PUBLIC PROSECUTIONS…………………………….RESPONDENT
Coram: Before Justice R. Nyakundi
Leina Davies for the State
RULING
1. Before this Court is notice of motion dated 25th November 2025, the Applicant
seeks the following orders:
a. THAT, may this honourable Court be pleased to hear and determine this
Petition expeditiously.
Criminal Misc. Application No. E069 of 2025 Page 2 of 7
b. THAT, this honourable Court be pleased to substitute the life sentence which
the Applicant is serving after being commuted from DEATH sentence by H.E
the President with a definite lenient sentence.
c. THAT, this honourable Court be pleased to issue an order that the definite
sentence as substituted to run from the date he was arrested on 7.07.2014
pursuant to the provisions of Section 333(2) of the Criminal Procedure Code.
d. Or any other order which the honourable Court deems fit in the interest of
justice.
2. Which application is based on the following grounds:
a. THAT, the provisions of paragraph 4.8.14 of the Judiciary Sentencing Policy
Guidelines, 2023 provides that all convicts as specified in the relevant
instructing instrument qualify for resentencing. In the case of murder
convicts:
(i) All offenders convicted of murder who have been subject to the
mandatory death penalty and desire to be heard on sentence as at the
time of the Supreme Court’s decision (14 December 2017).
(ii) All offenders sentenced to death for murder after the decision in
Muruatetu but without regard to or compliance with the Court's
declaration (i.e., not taken into account mitigating factors)
b. THAT, the Applicant was charged with the offence of murder contrary to
Section 203as read with Section 204 of the Penal Code in HCCR No 37 of
2014 at Kakamega High Court and sentenced to suffer DEATH on the 17th
day of November 2017.
c. THAT, the Applicant NEVER appealed to the Court of Appeal and has no
interest in doing so hence the present application.
d. THAT, the Applicant's death sentence was eventually commuted to LIFE
imprisonment by H.E the president.
e. THAT, the offence herein was committed within the jurisdiction of Vihiga
High Court but at the time of the trial, the High Court station at Vihiga had
not been established.
Criminal Misc. Application No. E069 of 2025 Page 3 of 7
f. THAT, the Applicant has been in lawful custody for the last eleven (11) years
all the while serving an indeterminate sentence.
g. THAT, the Supreme Court in Muruatetu & another v Republic; Katiba
Institute &5 others (Amicus Curiae) [2017] KESC 2 (KLR) made a declaration
that the mandatory nature of the death penalty as provided for under
Section 203 as read with Section 204 of the Penal Code is unconstitutional.
h. THAT, the Supreme Court gave further directions on the application of the
Muruatetu case in Muruatetu & another v Republic; Katiba Institute & 4
others (Amicus Curiae) [2021] KESC 31 (KLR), where it gave the following
guidelines at paragraph18;
a) The decision of Muruatetu and these guidelines apply only in respect to
sentences of murder under sections 203 and 204 of the Penal Code;
b) The Judiciary Sentencing Policy Guidelines to be revised in tandem with
the new jurisprudence enunciated in Muruatetu;
c) All offenders who have been subject to the mandatory death penalty and
desire to be heard on sentence will be entitled to re-sentencing hearing.
d) Where an appeal is pending before the Court of Appeal, the High Court will
entertain an application for re-sentencing upon being satisfied that the
appeal has been withdrawn
e) In re-sentencing hearing, the Court must record the prosecution's and the
appellant’s submissions under section 329of the Criminal Procedure Code,
as well as those of the victims before deciding on the suitable sentence.
f) An application for re-sentencing arising from a trial before the High Court
can only be entertained by the High Court, which has jurisdiction to do so
and not the subordinate Court.
g) In re-hearing sentence for the charge of murder, both aggravating and
mitigating factors such as the following, will guide the Court;(a) Age of the
offender; (b) Being a first offender;(c) Whether the offender pleaded
guilty;(d) Character and record of the offender; (e) Commission of the
offence in response to gender-based violence; (f) The manner in which the
offence was committed on the victim;(g) The physical and psychological
Criminal Misc. Application No. E069 of 2025 Page 4 of 7
effect of the offence on the victim's family; (h) Remorsefulness of the
offender;(i) The possibility of reform and social re-adaptation of the
offender;(j) Any other factor that the Court considers relevant.
h) Where the appellant has lodged an appeal against sentence alone, the
appellate Court will proceed to receive submissions on re-sentencing.
i) These guidelines will be followed by the High Court and the Court of
Appeal in ongoing murder trials and appeals. They will also apply to
sentences imposed under section 204 of the Penal Code before the decision
in Muruatetu.
j) THAT, the Applicant has been in lawful custody for the past eleven (11)
years all the while serving an indefinite sentence and desires to be heard
on resentencing so that he can the same can be replaced with a definite
sentence which will give him hope of being reintegrated with the society
after completion with the society after completion of his prison term.
k) THAT, for the eleven (11) years the Applicant has been in prison serving
an indeterminate sentence, he has taken full advantage of and positively
embraced the rehabilitation programs offered by the Kenya Prions Service.
l) THAT, the objectives of sentencing outlined under Paragraph 1.3.1 of the
sentencing policy guidelines, 2023; retribution, deterrence, rehabilitation,
restorative justice, community protection, denunciation and reconciliation
have all been achieved.
m) THAT, the only objective of sentencing that is yet to be achieved is
reintegration Courtesy of the indeterminate sentence he is serving, the
Applicant does not have a date which marks the end of his
incarceration/punishment.
n) THAT, indefinite life imprisonment is contrary to the constitution and
cannot be justified given the emerging norms of human decency and
human rights.
o) THAT, the balance between the justification for detention is not necessarily
static and may shift in the course of the sentence. What may be the
Criminal Misc. Application No. E069 of 2025 Page 5 of 7
primary justification for detention at the start of the sentence may not be
so after a lengthy period into the service of the sentence.
p) THAT, it is only by carrying out a review of the justification for continued
detention at an appropriate point in the sentence that the factors or shifts
can be properly evaluated.
q) THAT, the constitution under Article 50(2)(q) provides a convicted person
with the right to apply for a review.
r) THAT, an indeterminate life sentence with no possibility of release is cruel,
degrading and inhuman treatment.
s) THAT, the Applicant has lived in perpetual darkness for the last eleven
(11) years. His children have grown up without a father's love or guidance,
his spouse has lived without her husband's love and support, his kin have
lived without their family member. This is not what human dignity
envisaged by Article 28 of the Constitution.
t) THAT, a jurisprudential trend is eminently palpable where many countries
have explicitly substituted life imprisonment to a term sentence either
through legislation or through judicial interpretation of the Bill of Rights of
the different countries. See Makoni vs Prions Commissioner, CCZ 8/16
Constitutional Application No CCZ 48/15) [2016] ZWCC 8 (13 July 2016).
u) THAT, it is for the Courts to interpret the Bill of Rights broadly and liberally
in order to give effect to the enforcement of the right with an interpretation
which favour the enjoyment of that which is alleged to have been breached
or has been threatened to be breached.
v) THAT, denying the Applicant the benefit of the fundamental rights he is
seeking will be against the principle in Article 28 of the Constitution on the
observation, respect and protection of the Applicant's inherent human
dignity because failure to give him the benefit that was bestowed to the
Applicants in the Muruatetu Case (supra) and will be tantamount to rating
the Applicant to be an inferior human being undeserving of equal treatment
on equal footing with Muruatetu.
Criminal Misc. Application No. E069 of 2025 Page 6 of 7
w) THAT, this honorable Court is vested with sufficient jurisdiction to handle
an application of this nature pursuant to Article 165(3) of the Constitution
as read with Article 23 of the Constitution
Decision
3. The Applicant before this Court was charged and convicted by the Court
concurrent jurisdiction. According to the affidavit the Applicant avers or
assert that he preferred not to file an appeal to the Court of appeal but to
petition this Court to review the sentence of life imprisonment which was
commuted by the State from that of the death penalty imposed by the High
Court.
4. From the facts of this petition, the jurisdiction of the Court falls under Article
50(6) (a) and (b) of the Constitution of Kenya which grants convicted person
the right to petition the High Court for a new trial based on new, compelling
evidence and exhausted appeals. This provision under Article 50(6) of the
Constitution on the other hand provides a convict the right to petition the
High Court for a new/fresh trial. The Article reads as follows:
A person who is convicted of a criminal offence may petition the High
Court for a new trial if:
(a) the person’s appeal, if any, has been dismissed by the highest Court
to which the person is entitled to appeal, or the person did not appeal
within the time allowed for appeal and
(b) new and compelling evidence has become available.
A fresh trail entails a re-constitution of the trial Court to admit the
charge(s) afresh and to re-hear them. The two limbs under Article 50(6)
must be established, before a High Court can order a re-trial.
5. Where the High Court finds that the first limb of Article 50(6) has been
satisfied, it will proceed to interrogate the second limb: whether new and
compelling evidence has become available.
The Supreme Court in Tom Martins Kibisu -vs- Republic [2022]
eKLR describes “new evidence” as “evidence which was not available at
Criminal Misc. Application No. E069 of 2025 Page 7 of 7
the time of trial and which, despite exercise of due diligence, could not
have been availed at the trial”; and “compelling evidence” as “evidence
that would have been admissible at the trial, of high probative value and
capable of belief, and which would probably have led to a different
verdict had it been adduced at trial.”
New and compelling evidence is therefore evidence that on the face of it
is material to, or capable of affecting or varying the subject charges, the
criminal trial process, the conviction entered, or the sentence passed
against an accused person.
6. The petition must be tested within the strict Constitution threshold which
include the following grounds:
Exhaustion of appeals (Article 50(6)(a)): The Applicant’s appeal must
have been dismissed by the highest Court they are entitled to appeal to, or
they must have missed the original window to appeal.
New compelling evidence (Article 50(6)(b)): the evidence must not have
been available at the original trial could not have been found with
reasonable diligence, and is capable of proving innocence or highlighting a
violation of constitutional duties.
7. From this legal perspective the Petitioner has not qualified to have the
grievance in sentence to be subjected to a retrial as even life sentence is a
legal sentence in our legislative scheme as expressed by Parliament. As a
consequence, the petition is dismissed for want of merit. It is so ordered.
DATED AND DELIVERED AT VIHIGA THIS 29TH DAY OF MAY 2026