Through an undated petition filed on 24/10/2023, the Petitioner seeks the following reliefs;
That the court be pleased to embrace section 216 and 329 of the CPC , Cap 75 Laws of Kenya on the role of mitigation as read with Article 23 (3) of the Constitution to give reprieve to the Petitioner.
That Petitioner humbly prays to the court to be pleased to grant the petitioner sentence re-hearing on the life sentence from the death aspect and replace the indefinite sentence with a term or a number of years that can be served and get completed.
That any further order as this court may deem fit to grant.
The Petition was filed together with a Notice of Motion seeking only one prayer; the petitioner be heard in an application for orders that the petitioner here in be granted resentencing hearing.
The grounds were inter alia that the court be pleased that the general approach to the determination whether there is incompatibility or conflict of section 296 (2) of the Penal Code in contravention with the Constitution is not by mathematical or administrative formula but rather by judicial determination whereby the court is obliged to consider all the relevant factors within the context of the issue at hand which is the sentence in this argument; That this court has jurisdiction by reason of article 23 As read with article 165 of the Constitution to hear and determine the matter placed before it; that this court be pleased to assign the petitioner with a term of a number of years that can stand for his criminal responsibility and give him an allowance to go and lead a positive life of himself and to contribute to the common good of his community; That by reason of article 23 and 165(3) (d)(i) of the constitution this court is mandated to interrogate section 296(2) of the Penal Code and proceed with awarding the petitioner herein the benefits of his constitutional argument as it has the jurisdiction to do so on matters touching on the sentence on the bill of rights; That the court to embrace article 2(5) and (6) of the Constitution by embracing international jurisdiction on what ought to define life imprisonment from the death aspect as decided in Fred Michael Bwayo COA Cr Appeal no 130 of 2007.
In his supporting affidavit the deponed that at the time of filing the petition in 2023 he was 67 years old. He urged to the court to appreciate the role of mitigation in resentencing the petitioner as provided for under section 329 of the criminal procedure code. That the mandatory death sentence in section 296 subsection two of the penal code fetters the judge’s discretion thus discriminating the offender from being treated equally under the provisions of article 27 of the Constitution .In addition that it deprives the courts of their legitimate jurisdiction to exercise discretion in matters of life and death not to impose an alternative sentence and such law is to be regarded as unjust harsh in human and unfair. That the provision of the law predates the international agreement for the protection of human rights They’re by going against the grains of article 2 (5) and (6)of the Constitution as read with section(sic) 26 of the ICCPR; It is a colonial relic that has no place in modern day Kenya, a law caught up in a time warp which should be found irrelevant and swept into the dustbins of history; it fails to conform to the tenets of a fair trial that accrues to the accused person under article 25 of the Constitution; Section 296(2) of the Penal Code denied the petitioner as he then was an accused person the right to a fair trial in breach of section 77 repealed [constitution]as read with article 25 (a) and (c) of the Constitution of Kenya 2010 that ought to have been harmonized and reconciled with article 26 (1), 28 and 29 of the Constitution by the court on the last day pronouncement of his appellate rights
Supported by Affidavit owned by the petitioner
The court gave the following directions issued;
“The Applicant had a judgment delivered by the Court of Appeal on 22/06/2023 in Court of Appeal 79/2021-any review/revision ought to be sought before that Court. However, with respect to the Petition on the life imprisonment issue, let the Petition be served upon the ODPP within 7 days hereof. The Respondent has 30 days within which to respond.”
The above directions narrowed the issue to the Petitioner to the issues surrounding the sentence of life imprisonment imposed on him. It is however evident from the Petition that this is tied to the death sentence provided under s. 296(2) of the Penal Code, under which he was initially sentenced.
Response by the DPP
Through the grounds of opposition dated 17/11/2023, the Respondent stated that it would oppose the Petition on life imprisonment on the grounds that;
The Petition is misplaced, misconceived and bad in law.
The provisions of Article 26 of the Constitution, the sentence of death which was later commuted to life imprisonment is a lawful sentence.
The Petitioner’s rights have not been infringed.
The Petition is premised on generalities and assumptions.
The Petition was canvassed through written submissions. The Petitioners submissions are on record but the DPP elected to rely on their grounds of opposition.
Submissions by the Petitioner
The Petitioner submitted that this court has been approached on its original capacity by reason of Article 2(1), 21, 22, 23, 48, 50 & 165 of the Constitution. He submitted that he is not complaining of the conviction upheld by the Court of Appeal but on the death penalty which he finds unconstitutional considering all the relevant factors within the context of issues raised in the Constitution which the appellate court never reconciled and harmonized. That under Article 28 of the Constitution on protection of human dignity, sentencing an offender to death robs him of his dignity.
The Petitioner submitted that this court should find that even the life sentence which he is serving deprives him of his right to dignity for it is untenable for him to spend his whole life in prison. Referring to Francis Karioko Muruatetu & Anor -vs- R; Petition No. 15 of 2015 consolidated with Petition No. 16 of 2015 (Muruatetu case), he submitted that although the case specifically dealt with the death sentence for murder, the decision broadly and liberally considered the constitutionality of the death sentence in general.
He submitted that in the Muruatetu case, the Supreme Court affirmed the decision in Godfrey Ngotho Mutiso -vs- R; Criminal Appeal No. 17 of 2008 to wit; “We are in agreement and affirm the Court of Appeal decision in Mutiso that whilst the Constitution recognizes the death penalty as being lawful, it does not provide that when a conviction for murder is recorded, only the death sentence shall be imposed.”
Further, he submitted that in the Mutiso case (supra) , the Court of Appeal said obiter that the arguments set out in that case in respect of section 203 as read with section 204 of the Penal Code might apply to other capital offences. Consequently, he urged this court to hold that the death sentence under section 296 (2) of the Penal Code is a discretionary maximum punishment. That section 296 (2) of the Penal Code is unconstitutional to the extent that it provides for a mandatory death sentence.
The Petitioner urged this court to grant him relief by assigning him with a term or a number of years that he will be able to serve and complete subject to the prison remission rules while putting into account the period already spent in prison from the date of arrest. That the court should also observe the normal life expectancy of a human being and his elderly age of 69 years.
The respondent did not file any submissions
Analysis & Determination
The Petitioner was sentenced to death by the Makindu Senior Resident Magistrate’s Court on 16/06/2016 for the offence of Robbery with violence. He appealed to this court vide HCCRA 102 of 2017 but his appeal was dismissed (Kariuki J) on 21/08/2017. He proceeded to the Court of Appeal at Nairobi vide Criminal Appeal No. 79 of 2021 but his second appeal was also dismissed ( Makhandia, Murgor & Kantai JJ. A) on 22/06/2023.
Essentially the courts upheld the sentence of death as provided by the law.
Section 296. Of the Penal Code provides as follows: Punishment of robbery
(1) Any person who commits the felony of robbery is liable to imprisonment for fourteen years.
(2) If the offender is armed with any dangerous or offensive weapon or instrument, or is in company with one or more other person or persons, or if, at or immediately before or immediately after the time of the robbery, he wounds, beats, strikes or uses any other personal violence to any person , he shall be sentenced to death.
The mandatory nature of the sentence of death under s. 296(2) of the Penal Code has already been declared unconstitutional. In Ngatia v Republic [2024] KEHC 429 (KLR) the court in determining an application for re -sentencing in a stroke two matter , stated
Alleged violation
18.The applicant is challenging the mandatory nature of the death sentence in section 296(2) of the Penal Code for denying the court discretion to impose an appropriate sentence. He prays for the life sentence to be set aside and for him to be given a definite lenient sentence. He says that he is rehabilitated and has learned new skills which makes him fit for re-integration in society. In addition, he submitted that he is advanced in age and hopes to get a sentence that will allow him to support his family.
19.In reacting to these submissions, the prosecution counsel has conceded to the application.
Applying the test
20.The application is premised upon inter alia articles 22(1), 23(3), and 165 (3) of the Constitution . Therefore, an application for redress of denial, violation, or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights.
21.The applicant claimed violation of article 50(2)(p) of the Constitution which provides: -50(2) Every accused person has the right to a fair trial, which includes the right—(p)to the benefit of the least severe of the prescribed punishments for an offence, if the prescribed punishment for the offence has been changed between the time that the offence was committed and the time of sentencing
22.Discretion in sentencing is a matter of justice and pertains to fair trial. Mandatory sentence deprives courts of discretion to impose appropriate sentences. Therefore, mandatory sentence is arbitrary; and unconstitutional. Any person who suffer such deprivation is entitled to redress, and may claim violation of the right to appropriate or less severe sentence- a principle embodied in the Constitution including article 50(2)(p) of the Constitution .
23.The impugned penalty clause is Section 296(2) of the Penal Code which provides: -If the offender is armed with any dangerous or offensive weapon or instrument, or is in company with one or more other person or persons, or if, at or immediately before or immediately after the time of the robbery, he wounds, beats, strikes or uses any other personal violence to any person, he shall be sentenced to death. [Underlining mine and for emphasis]
24.The word ‘shall’ in Section 296(2) of the Penal Code discharges a mandatory command giving no room for any discretion by court in sentencing. Therefore, to the extent that the section provides for a mandatory sentence of death, thereby, taking away the discretion of the court in sentencing, is inconsistent with the Constitution .
25.However, ‘All law in force immediately before the effective date continues in force and shall be construed with the alterations, adaptations, qualifications and exceptions necessary to bring it into conformity with this Constitution’ (Section 7(1) of the Transitional Provisions, Sixth Schedule of the Constitution ). Therefore, there is no absolute necessity or strict requirement in law to strike down a provision in existing law such as section 296(2) of the Penal Code for being inconsistent with the Constitution unless it is totally irreconcilable with the Constitution . These are tolls and techniques of construction of statute which were specially designed to avoid paralysis and confusion which may ensue upon down-right striking out of provisions of existing law, but also giving the legislature time to remove the offending elements aligning it to the Constitution .
26.In this case, section 296(2) of the Penal Code is interpreted to prescribe death as the maximum sentence- this brings it into conformity with the Constitution .
See also Leteipa v Republic [2024] KEHC 466 (KLR)
In Mbugua & 9 others v Attorney General & 3 others [2025] KEHC 1248 (KLR) the Petitioners also sought that the mandatory nature of the death sentence under s. 296(2) of the Penal Code was unconstitutional and violated the rights of the Petitioners under Article 28 of the Constitution.
With respect to that aspect of the Petition, I agree with the above decisions that the mandatory nature of the death sentence under s. 296(2) of the Penal Code is unconstitutional.
The Petitioner’s death sentence was commuted to a sentence of life imprisonment by the Executive through the Power of Mercy. Hence the Petitioner is serving a sentence of life imprisonment.
The issues for determination are: whether this court has the jurisdiction to hear and determine this petition;
whether the petition has merit; i.e., whether the prayers sought are tenable in the circumstances of this case.
what reliefs are available to the Petitioner.
On Jurisdiction: This court has jurisdiction to determine the Petition by virtue of Articles 23 and 165 of the Constitution which provide
23(1) “The High Court has jurisdiction, in accordance with Article 165, to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights.”
165(3) “Subject to clause 5, the High Court shall have;
(b) Jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened.”
25. On whether the Court of Appeal acted ultra vires and without jurisdiction, the Appellant submitted that the trial court imposed a lawful sentence; the issue of constitutionality of the life imprisonment sentence was not an issue at the trial court or the High Court and that the Court of Appeal proceeded to address itself, on the same, as an original trial court. Further, the constitutional validity of the sentence imposed could properly be challenged before the High Court and therefore the Respondent was not without a remedy in law, had that ground been dismissed as it ought to have been. The Appellant cites the High Court decision in Protus Buliba Shikuku v Republic Constitutional Reference No. 3 of 2011 (2012) eKLR to assert the High Court’s jurisdiction to redress a violation arising from the operation of law through the system of courts even if the case had gone through the appellate process.
On the Prayers sought: The Petitioner relies on the ratio decidendi in Muruatetu 1 and invites this court to apply the same reasoning and to arrive at a decision that the indeterminate nature of the sentence of death is unconstitutional , and to review the same and impose a determinate sentence .
Further, the Court of Appeal ( Okwengu, Omondi & Joel Ngugi JJ.A) sitting in Kisumu rendered itself on 08/12/2023 in Evans Nyamari Ayako -vs- R; (Criminal Appeal 22 of 2018) [2023] KECA 1563 (KLR) (8 December 2023) and defined a sentence of life imprisonment to mean 30 years imprisonment. The court held that:
“This qualitative survey of how different jurisdictions have treated life imprisonment in the recent past provides objective indicia of the emerging consensus that life imprisonment is seen as being antithetical to the constitutional value of human dignity and as being inhuman and degrading because of its indefiniteness and the definitional impossibility that the inmate would ever be released. This emerging consensus of the civilized world community, while not controlling our outcome, provides respected and significant confirmation for our own conclusion that life imprisonment is cruel and degrading treatment owing to its indefiniteness. On our part, considering this comparative jurisprudence and the prevailing socio-economic conditions in Kenya, we come to the considered conclusion that life imprisonment in Kenya does not mean the natural life of the convict. Instead, we now hold, life imprisonment translates to thirty years’ imprisonment.”
It is imperative to set out at this stage the position of the Supreme Court on this issue.
The Supreme Court in Muruatetu 1 spoke to this issue thus;
Whether the Supreme Court could fix a definite number of years of imprisonment, subject to remission rules, which would constitute life imprisonment.
.
The Supreme Court held as follows
The provisions on the rights of detained persons as enshrined under article 51 of the Constitution were considered in order to determine whether the Supreme Court could fix a definite number of years. It was clear from those provisions that it was the legislature, and not the judiciary, that was tasked with providing a legal framework for the rights and treatment of convicted persons. Although the judiciary released elaborate and comprehensive Sentencing Policy Guidelines in 2016, there were no specific provisions for the sentence of life imprisonment, because it was an indeterminate sentence. Nevertheless, it was not for the court to define what constituted a life sentence or what number of years must first be served by a prisoner on life sentence before they were considered on parole. That was a function within the realm of the legislature .
Hence this court cannot delve into the issue as to the number of years that the petitioner ought to serve in lieu of the sentence of life imprisonment because the Supreme Court has already spoken to that issue.
In addition, on 11 th day of April 2025 in Republic v Manyeso [2025] KESC 16 (KLR) the Supreme Court set aside the Judgment in Julius Kitsao Manyeso -vs- R, (Criminal Appeal 12 of 2021) [2023] KECA 827 (KLR) (7 July 2023) w here the Court of Appeal had addressed the issue of life imprisonment thus;
“21. We note that the decisions of this court relied on by the appellant, namely Evans Wanjala Wanyonyi v Rep [2019] eKLR and Jared Koita Injiri v Republic Kisumu Crim App No 93 of 2014 were decided before the Supreme Court clarified the application of its decision in Francis Karioko Muruatetu & another v Republic [2021] eKLR and limited its finding of unconstitutionality of mandatory sentences to mandatory death sentences imposed on murder convicts pursuant to section 204 of the Penal Code . This fact notwithstanding, we are of the view that the reasoning in Francis Karioko Muruatetu & another v Republic [2017] eKLR equally applies to the imposition of a mandatory indeterminate life sentence, namely that such a sentence denies a convict facing life imprisonment the opportunity to be heard in mitigation when those facing lesser sentences are allowed to be heard in mitigation . This is an unjustifiable discrimination, unfair and repugnant to the principle of equality before the law under article 27 of the Constitution . In addition, an indeterminate life sentence is in our view also inhumane treatment and violates the right to dignity under article 28, and we are in this respect persuaded by the reasoning of the European Court of Human Rights in Vinter and others v The United Kingdom (Application Nos 66069/09, 130/10 and 3896/10) [2016] III ECHR 317 (9 July 2013) that an indeterminate life sentence without any prospect of release or a possibility of review is degrading and inhuman punishment, and that it is now a principle in international law that all prisoners, including those serving life sentences, be offered the possibility of rehabilitation and the prospect of release if that rehabilitation is achieved.” ( Emphasis mine)
The Supreme Court stated :
Paragraphs 93 to 97 of the Muruatetu decision are also explicit that it is not for the court to define what constitutes a life sentence. While we appreciated that a life sentence could mean a certain minimum or maximum time to be set by a judicial officer, this Court made the following recommendations to the Attorney General to develop legislation on what constitutes a life sentence: “
94. We recognize that although the Judiciary released elaborate and comprehensive Sentencing Policy Guidelines in 2016, there are no specific provisions for the sentence of life imprisonment, because it is an indeterminate sentence. Nevertheless, we are in agreement with the High Court decision in Jackson Wangui, supra, which found that it is not for the court to define what constitutes a life sentence or what number of years must first be served by a prisoner on life sentence before they are considered on parole. This is a function within the realm of the Legislature.
95. We also acknowledge that in Kenya and internationally, sentencing should not only be used for the purpose of retribution, it is also for the rehabilitation of the prisoner as well as for the protection of civilians who may be harmed by some prisoners. We find the comparative jurisprudence with regard to the indeterminate life sentence is compelling. We find that a life sentence should not necessarily mean the natural life of the prisoner; it could also mean a certain minimum or maximum time to be set by the relevant judicial officer along established parameters of criminal responsibility, retribution, rehabilitation and recidivism.
96. We therefore recommend that the Attorney General and Parliament commence an enquiry and develop legislation on the definition of ‘what constitutes a life sentence’; this may include a minimum number of years to be served before a prisoner is considered for parole or remission, or provision for prisoners under specific circumstances to serve whole life sentences. This will be in tandem with the objectives of sentencing .
65. From the above paragraphs of the Muruatetu case any reading of that decision ought to lead to the conclusion that it is upon the Legislature to enact legislation on what constitutes a life sentence and not the courts.
The Supreme Court continued to determine in the following terms :
(1) Whether the Court of Appeal Erred in Law by Substituting the Life Imprisonment Sentence with 40 years Sentence thereby Usurping the Legislative Powers to Define Sentences.
67. Article 94 of the Constitution provides that legislative authority is derived from the people and, at the national level, is vested in and exercised by Parliament, while every court within the constitutional framework has the authority to determine the constitutionality of a statute. Article 165 (3)(b) grants the High Court original jurisdiction to determine the question whether a right or fundamental freedom under the Bill of Rights has been denied, infringed, violated or threatened. The Court of Appeal, when acting within its appellate jurisdiction, is empowered to scrutinize and interpret the constitutionality or otherwise of a statute, the issue equally having been canvassed at the first instance before the High Court. The court's role with regard to the constitutionality of a statute is therefore confined to its interpretation and adjudication.
68. Courts cannot therefore extend their determination to rectifying or amending the statute in question, as this would contravene the doctrine of separation of powers, which delineates the functions of the judiciary, legislature, and executive. Courts must exercise caution when crafting remedies to avoid overstepping their judicial mandate and intruding upon legislative functions by prescribing or enacting amendments. When courts recognize the need for legislative intervention, it is both proper and imperative for them to recommend such measures to the appropriate authorities for adoption. As a Court we have invoked this remedy in various instances; in Shah & 7 others v Mombasa Bricks & Tiles Limited & 5 others (Petition 18 (E020) of 2022) [2023] KESC 106 (KLR) we suggested the consideration of reforms over the recourse parties have upon the declaration of trust by the courts and how to actualize the same, especially regarding the aspect of shareholding. In Malcolm Bell v Daniel Toroitich Arap Moi & Board of Governors Moi High School Kabarak (Application 1 of 2013) [2013] KESC23 (KLR) Hon.Justice Kaplana Rawal,DCJ in her concurring opinion made recommendations to amend Section 16 of the Supreme Court Act. In Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] KESC 53 (KLR) we urged CAK to set a timeline for the digital migration. In National Bank of Kenya Limited v Anaj Warehousing Limited (Petition No. 36 of 2014) [2015] KESC 4 (KLR) we suggested appropriate legislative action to be taken to address the gaps and inconsistencies apparent in the Advocates Act.
69. We therefore find no difficulty in finding that the Court of Appeal erred in law by substituting the life imprisonment sentence with a 40-year sentence, thereby usurping the legislative power to define sentences.
While I am in agreement with the Court of Appeal that
a mandatory indeterminate life sentence… denies a convict facing life imprisonment the opportunity to be heard in mitigation when those facing lesser sentences are allowed to be heard in mitigation.. . This is an unjustifiable discrimination, unfair and repugnant to the principle of equality before the law under article 27 of the Constitution . In addition, an indeterminate life sentence is… also inhumane treatment and violates the right to dignity under article 28,[of the Constitution]
However, this court is bound by the decision of the Supreme Court in as far as the substitution of a sentence of life imprisonment with a number of years or determinate sentence.
Be that as it may , in the Petitioner’s case, he was not handed a mandatory sentence of life imprisonment. The court meted the death sentence. That sentence was commuted to life imprisonment by decree of the Executive in the exercise powers conferred by the Constitution. To that end it does not qualify as a mandatory life imprisonment sentence. It is the exercise of discretion by the Executive as provided for in the Constitution, and in this case, removing the Petitioner from Death Row to lie imprisonment, or as it is otherwise grimly put, from ‘condemn’ to ‘lifer’.
Even in manslaughter cases the court has discretion to give a sentence up to life. It is in the sexual offences act where mandatory life sentence is prescribed in some cases,
The Petitioner has approached the court as though the court had imposed upon him the indeterminate sentence. It is also his position that he was denied the opportunity to mitigate.
However, it is clear from his own petition that the sentence came upon him through the Constitutional acts of the Executive
Article 133 of the Constitution provides for the exercise of the Power of mercy
(1) On the petition of any person, the President may exercise a power of mercy in accordance with the advice of the Advisory Committee established under clause (2), by—
(a) granting a free or conditional pardon to a person convicted of an offence;
(b) postponing the carrying out of a punishment, either for a specified or indefinite period;
(c) substituting a less severe form of punishment ; or
(d) remitting all or part of a punishment. (Emphasis mine)
(2) There shall be an Advisory Committee on the Power of Mercy, comprising—
(a) the Attorney-General;
(b) the Cabinet Secretary responsible for correctional services; and
(c) at least five other members as prescribed by an Act of Parliament, none of whom may be a state officer or in public service.
(3) Parliament shall enact legislation to provide for—
(a) the tenure of the members of the Advisory Committee;
(b) the procedure of the Advisory Committee; and
(c) criteria that shall be applied by the Advisory Committee in formulating its advice.
(4) The Advisory Committee may take into account the views of the victims of the offence in respect of which it is considering making recommendations to the President.
Parliament enacted The Power of Mercy Act Cap. 94 which at s. 22. Sets out the Criteria to be applied by the Committee in the determination the recommendation to be made to the President;
(1)The Committee shall, in making a recommendation under Article 133 of the Constitution and section 21(1)(c) consider—
(a) the age of the convicted criminal prisoner at the time of the commission of the offence;
(b)the circumstances surrounding the commission of the offence;
(c)whether the person, for whose benefit the petition is made, is a first offender ;
(d)the nature and seriousness of the offence ;
(e)the length of period so far served by the convicted criminal prisoner;
(f) the length of period served by the convicted criminal prisoner in remand ;
(g) the personal circumstances of the offender at the time of making the petition, including mental and physical health and any disabilities;
(h)the interest of the State and community ;
(i)the post-conviction conduct , character and reputation of the convicted criminal prisoner;
(j)the official recommendations and reports from the State organ or department responsible for correctional services;
(k)where the petitioner has opted to pursue other available remedies, the outcome of such avenue; and
(l)the representation of the victim where applicable.
(2)In addition to the requirements under subsection (1), the Committee may consider—
(a)where applicable, a report of fellow inmates; or
(b)reports
[...truncated]
That the court be pleased to embrace section 216 and 329 of the CPC , Cap 75 Laws of Kenya on the role of mitigation as read with Article 23 (3) of the Constitution to give reprieve to the Petitioner.
That Petitioner humbly prays to the court to be pleased to grant the petitioner sentence re-hearing on the life sentence from the death aspect and replace the indefinite sentence with a term or a number of years that can be served and get completed.
That any further order as this court may deem fit to grant.
The Petition was filed together with a Notice of Motion seeking only one prayer; the petitioner be heard in an application for orders that the petitioner here in be granted resentencing hearing.
The grounds were inter alia that the court be pleased that the general approach to the determination whether there is incompatibility or conflict of section 296 (2) of the Penal Code in contravention with the Constitution is not by mathematical or administrative formula but rather by judicial determination whereby the court is obliged to consider all the relevant factors within the context of the issue at hand which is the sentence in this argument; That this court has jurisdiction by reason of article 23 As read with article 165 of the Constitution to hear and determine the matter placed before it; that this court be pleased to assign the petitioner with a term of a number of years that can stand for his criminal responsibility and give him an allowance to go and lead a positive life of himself and to contribute to the common good of his community; That by reason of article 23 and 165(3) (d)(i) of the constitution this court is mandated to interrogate section 296(2) of the Penal Code and proceed with awarding the petitioner herein the benefits of his constitutional argument as it has the jurisdiction to do so on matters touching on the sentence on the bill of rights; That the court to embrace article 2(5) and (6) of the Constitution by embracing international jurisdiction on what ought to define life imprisonment from the death aspect as decided in Fred Michael Bwayo COA Cr Appeal no 130 of 2007.
In his supporting affidavit the deponed that at the time of filing the petition in 2023 he was 67 years old. He urged to the court to appreciate the role of mitigation in resentencing the petitioner as provided for under section 329 of the criminal procedure code. That the mandatory death sentence in section 296 subsection two of the penal code fetters the judge’s discretion thus discriminating the offender from being treated equally under the provisions of article 27 of the Constitution .In addition that it deprives the courts of their legitimate jurisdiction to exercise discretion in matters of life and death not to impose an alternative sentence and such law is to be regarded as unjust harsh in human and unfair. That the provision of the law predates the international agreement for the protection of human rights They’re by going against the grains of article 2 (5) and (6)of the Constitution as read with section(sic) 26 of the ICCPR; It is a colonial relic that has no place in modern day Kenya, a law caught up in a time warp which should be found irrelevant and swept into the dustbins of history; it fails to conform to the tenets of a fair trial that accrues to the accused person under article 25 of the Constitution; Section 296(2) of the Penal Code denied the petitioner as he then was an accused person the right to a fair trial in breach of section 77 repealed [constitution]as read with article 25 (a) and (c) of the Constitution of Kenya 2010 that ought to have been harmonized and reconciled with article 26 (1), 28 and 29 of the Constitution by the court on the last day pronouncement of his appellate rights
Supported by Affidavit owned by the petitioner
The court gave the following directions issued;
“The Applicant had a judgment delivered by the Court of Appeal on 22/06/2023 in Court of Appeal 79/2021-any review/revision ought to be sought before that Court. However, with respect to the Petition on the life imprisonment issue, let the Petition be served upon the ODPP within 7 days hereof. The Respondent has 30 days within which to respond.”
The above directions narrowed the issue to the Petitioner to the issues surrounding the sentence of life imprisonment imposed on him. It is however evident from the Petition that this is tied to the death sentence provided under s. 296(2) of the Penal Code, under which he was initially sentenced.
Response by the DPP
Through the grounds of opposition dated 17/11/2023, the Respondent stated that it would oppose the Petition on life imprisonment on the grounds that;
The Petition is misplaced, misconceived and bad in law.
The provisions of Article 26 of the Constitution, the sentence of death which was later commuted to life imprisonment is a lawful sentence.
The Petitioner’s rights have not been infringed.
The Petition is premised on generalities and assumptions.
The Petition was canvassed through written submissions. The Petitioners submissions are on record but the DPP elected to rely on their grounds of opposition.
Submissions by the Petitioner
The Petitioner submitted that this court has been approached on its original capacity by reason of Article 2(1), 21, 22, 23, 48, 50 & 165 of the Constitution. He submitted that he is not complaining of the conviction upheld by the Court of Appeal but on the death penalty which he finds unconstitutional considering all the relevant factors within the context of issues raised in the Constitution which the appellate court never reconciled and harmonized. That under Article 28 of the Constitution on protection of human dignity, sentencing an offender to death robs him of his dignity.
The Petitioner submitted that this court should find that even the life sentence which he is serving deprives him of his right to dignity for it is untenable for him to spend his whole life in prison. Referring to Francis Karioko Muruatetu & Anor -vs- R; Petition No. 15 of 2015 consolidated with Petition No. 16 of 2015 (Muruatetu case), he submitted that although the case specifically dealt with the death sentence for murder, the decision broadly and liberally considered the constitutionality of the death sentence in general.
He submitted that in the Muruatetu case, the Supreme Court affirmed the decision in Godfrey Ngotho Mutiso -vs- R; Criminal Appeal No. 17 of 2008 to wit; “We are in agreement and affirm the Court of Appeal decision in Mutiso that whilst the Constitution recognizes the death penalty as being lawful, it does not provide that when a conviction for murder is recorded, only the death sentence shall be imposed.”
Further, he submitted that in the Mutiso case (supra) , the Court of Appeal said obiter that the arguments set out in that case in respect of section 203 as read with section 204 of the Penal Code might apply to other capital offences. Consequently, he urged this court to hold that the death sentence under section 296 (2) of the Penal Code is a discretionary maximum punishment. That section 296 (2) of the Penal Code is unconstitutional to the extent that it provides for a mandatory death sentence.
The Petitioner urged this court to grant him relief by assigning him with a term or a number of years that he will be able to serve and complete subject to the prison remission rules while putting into account the period already spent in prison from the date of arrest. That the court should also observe the normal life expectancy of a human being and his elderly age of 69 years.
The respondent did not file any submissions
Analysis & Determination
The Petitioner was sentenced to death by the Makindu Senior Resident Magistrate’s Court on 16/06/2016 for the offence of Robbery with violence. He appealed to this court vide HCCRA 102 of 2017 but his appeal was dismissed (Kariuki J) on 21/08/2017. He proceeded to the Court of Appeal at Nairobi vide Criminal Appeal No. 79 of 2021 but his second appeal was also dismissed ( Makhandia, Murgor & Kantai JJ. A) on 22/06/2023.
Essentially the courts upheld the sentence of death as provided by the law.
Section 296. Of the Penal Code provides as follows: Punishment of robbery
(1) Any person who commits the felony of robbery is liable to imprisonment for fourteen years.
(2) If the offender is armed with any dangerous or offensive weapon or instrument, or is in company with one or more other person or persons, or if, at or immediately before or immediately after the time of the robbery, he wounds, beats, strikes or uses any other personal violence to any person , he shall be sentenced to death.
The mandatory nature of the sentence of death under s. 296(2) of the Penal Code has already been declared unconstitutional. In Ngatia v Republic [2024] KEHC 429 (KLR) the court in determining an application for re -sentencing in a stroke two matter , stated
Alleged violation
18.The applicant is challenging the mandatory nature of the death sentence in section 296(2) of the Penal Code for denying the court discretion to impose an appropriate sentence. He prays for the life sentence to be set aside and for him to be given a definite lenient sentence. He says that he is rehabilitated and has learned new skills which makes him fit for re-integration in society. In addition, he submitted that he is advanced in age and hopes to get a sentence that will allow him to support his family.
19.In reacting to these submissions, the prosecution counsel has conceded to the application.
Applying the test
20.The application is premised upon inter alia articles 22(1), 23(3), and 165 (3) of the Constitution . Therefore, an application for redress of denial, violation, or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights.
21.The applicant claimed violation of article 50(2)(p) of the Constitution which provides: -50(2) Every accused person has the right to a fair trial, which includes the right—(p)to the benefit of the least severe of the prescribed punishments for an offence, if the prescribed punishment for the offence has been changed between the time that the offence was committed and the time of sentencing
22.Discretion in sentencing is a matter of justice and pertains to fair trial. Mandatory sentence deprives courts of discretion to impose appropriate sentences. Therefore, mandatory sentence is arbitrary; and unconstitutional. Any person who suffer such deprivation is entitled to redress, and may claim violation of the right to appropriate or less severe sentence- a principle embodied in the Constitution including article 50(2)(p) of the Constitution .
23.The impugned penalty clause is Section 296(2) of the Penal Code which provides: -If the offender is armed with any dangerous or offensive weapon or instrument, or is in company with one or more other person or persons, or if, at or immediately before or immediately after the time of the robbery, he wounds, beats, strikes or uses any other personal violence to any person, he shall be sentenced to death. [Underlining mine and for emphasis]
24.The word ‘shall’ in Section 296(2) of the Penal Code discharges a mandatory command giving no room for any discretion by court in sentencing. Therefore, to the extent that the section provides for a mandatory sentence of death, thereby, taking away the discretion of the court in sentencing, is inconsistent with the Constitution .
25.However, ‘All law in force immediately before the effective date continues in force and shall be construed with the alterations, adaptations, qualifications and exceptions necessary to bring it into conformity with this Constitution’ (Section 7(1) of the Transitional Provisions, Sixth Schedule of the Constitution ). Therefore, there is no absolute necessity or strict requirement in law to strike down a provision in existing law such as section 296(2) of the Penal Code for being inconsistent with the Constitution unless it is totally irreconcilable with the Constitution . These are tolls and techniques of construction of statute which were specially designed to avoid paralysis and confusion which may ensue upon down-right striking out of provisions of existing law, but also giving the legislature time to remove the offending elements aligning it to the Constitution .
26.In this case, section 296(2) of the Penal Code is interpreted to prescribe death as the maximum sentence- this brings it into conformity with the Constitution .
See also Leteipa v Republic [2024] KEHC 466 (KLR)
In Mbugua & 9 others v Attorney General & 3 others [2025] KEHC 1248 (KLR) the Petitioners also sought that the mandatory nature of the death sentence under s. 296(2) of the Penal Code was unconstitutional and violated the rights of the Petitioners under Article 28 of the Constitution.
With respect to that aspect of the Petition, I agree with the above decisions that the mandatory nature of the death sentence under s. 296(2) of the Penal Code is unconstitutional.
The Petitioner’s death sentence was commuted to a sentence of life imprisonment by the Executive through the Power of Mercy. Hence the Petitioner is serving a sentence of life imprisonment.
The issues for determination are: whether this court has the jurisdiction to hear and determine this petition;
whether the petition has merit; i.e., whether the prayers sought are tenable in the circumstances of this case.
what reliefs are available to the Petitioner.
On Jurisdiction: This court has jurisdiction to determine the Petition by virtue of Articles 23 and 165 of the Constitution which provide
23(1) “The High Court has jurisdiction, in accordance with Article 165, to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights.”
165(3) “Subject to clause 5, the High Court shall have;
(b) Jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened.”
25. On whether the Court of Appeal acted ultra vires and without jurisdiction, the Appellant submitted that the trial court imposed a lawful sentence; the issue of constitutionality of the life imprisonment sentence was not an issue at the trial court or the High Court and that the Court of Appeal proceeded to address itself, on the same, as an original trial court. Further, the constitutional validity of the sentence imposed could properly be challenged before the High Court and therefore the Respondent was not without a remedy in law, had that ground been dismissed as it ought to have been. The Appellant cites the High Court decision in Protus Buliba Shikuku v Republic Constitutional Reference No. 3 of 2011 (2012) eKLR to assert the High Court’s jurisdiction to redress a violation arising from the operation of law through the system of courts even if the case had gone through the appellate process.
On the Prayers sought: The Petitioner relies on the ratio decidendi in Muruatetu 1 and invites this court to apply the same reasoning and to arrive at a decision that the indeterminate nature of the sentence of death is unconstitutional , and to review the same and impose a determinate sentence .
Further, the Court of Appeal ( Okwengu, Omondi & Joel Ngugi JJ.A) sitting in Kisumu rendered itself on 08/12/2023 in Evans Nyamari Ayako -vs- R; (Criminal Appeal 22 of 2018) [2023] KECA 1563 (KLR) (8 December 2023) and defined a sentence of life imprisonment to mean 30 years imprisonment. The court held that:
“This qualitative survey of how different jurisdictions have treated life imprisonment in the recent past provides objective indicia of the emerging consensus that life imprisonment is seen as being antithetical to the constitutional value of human dignity and as being inhuman and degrading because of its indefiniteness and the definitional impossibility that the inmate would ever be released. This emerging consensus of the civilized world community, while not controlling our outcome, provides respected and significant confirmation for our own conclusion that life imprisonment is cruel and degrading treatment owing to its indefiniteness. On our part, considering this comparative jurisprudence and the prevailing socio-economic conditions in Kenya, we come to the considered conclusion that life imprisonment in Kenya does not mean the natural life of the convict. Instead, we now hold, life imprisonment translates to thirty years’ imprisonment.”
It is imperative to set out at this stage the position of the Supreme Court on this issue.
The Supreme Court in Muruatetu 1 spoke to this issue thus;
Whether the Supreme Court could fix a definite number of years of imprisonment, subject to remission rules, which would constitute life imprisonment.
.
The Supreme Court held as follows
The provisions on the rights of detained persons as enshrined under article 51 of the Constitution were considered in order to determine whether the Supreme Court could fix a definite number of years. It was clear from those provisions that it was the legislature, and not the judiciary, that was tasked with providing a legal framework for the rights and treatment of convicted persons. Although the judiciary released elaborate and comprehensive Sentencing Policy Guidelines in 2016, there were no specific provisions for the sentence of life imprisonment, because it was an indeterminate sentence. Nevertheless, it was not for the court to define what constituted a life sentence or what number of years must first be served by a prisoner on life sentence before they were considered on parole. That was a function within the realm of the legislature .
Hence this court cannot delve into the issue as to the number of years that the petitioner ought to serve in lieu of the sentence of life imprisonment because the Supreme Court has already spoken to that issue.
In addition, on 11 th day of April 2025 in Republic v Manyeso [2025] KESC 16 (KLR) the Supreme Court set aside the Judgment in Julius Kitsao Manyeso -vs- R, (Criminal Appeal 12 of 2021) [2023] KECA 827 (KLR) (7 July 2023) w here the Court of Appeal had addressed the issue of life imprisonment thus;
“21. We note that the decisions of this court relied on by the appellant, namely Evans Wanjala Wanyonyi v Rep [2019] eKLR and Jared Koita Injiri v Republic Kisumu Crim App No 93 of 2014 were decided before the Supreme Court clarified the application of its decision in Francis Karioko Muruatetu & another v Republic [2021] eKLR and limited its finding of unconstitutionality of mandatory sentences to mandatory death sentences imposed on murder convicts pursuant to section 204 of the Penal Code . This fact notwithstanding, we are of the view that the reasoning in Francis Karioko Muruatetu & another v Republic [2017] eKLR equally applies to the imposition of a mandatory indeterminate life sentence, namely that such a sentence denies a convict facing life imprisonment the opportunity to be heard in mitigation when those facing lesser sentences are allowed to be heard in mitigation . This is an unjustifiable discrimination, unfair and repugnant to the principle of equality before the law under article 27 of the Constitution . In addition, an indeterminate life sentence is in our view also inhumane treatment and violates the right to dignity under article 28, and we are in this respect persuaded by the reasoning of the European Court of Human Rights in Vinter and others v The United Kingdom (Application Nos 66069/09, 130/10 and 3896/10) [2016] III ECHR 317 (9 July 2013) that an indeterminate life sentence without any prospect of release or a possibility of review is degrading and inhuman punishment, and that it is now a principle in international law that all prisoners, including those serving life sentences, be offered the possibility of rehabilitation and the prospect of release if that rehabilitation is achieved.” ( Emphasis mine)
The Supreme Court stated :
Paragraphs 93 to 97 of the Muruatetu decision are also explicit that it is not for the court to define what constitutes a life sentence. While we appreciated that a life sentence could mean a certain minimum or maximum time to be set by a judicial officer, this Court made the following recommendations to the Attorney General to develop legislation on what constitutes a life sentence: “
94. We recognize that although the Judiciary released elaborate and comprehensive Sentencing Policy Guidelines in 2016, there are no specific provisions for the sentence of life imprisonment, because it is an indeterminate sentence. Nevertheless, we are in agreement with the High Court decision in Jackson Wangui, supra, which found that it is not for the court to define what constitutes a life sentence or what number of years must first be served by a prisoner on life sentence before they are considered on parole. This is a function within the realm of the Legislature.
95. We also acknowledge that in Kenya and internationally, sentencing should not only be used for the purpose of retribution, it is also for the rehabilitation of the prisoner as well as for the protection of civilians who may be harmed by some prisoners. We find the comparative jurisprudence with regard to the indeterminate life sentence is compelling. We find that a life sentence should not necessarily mean the natural life of the prisoner; it could also mean a certain minimum or maximum time to be set by the relevant judicial officer along established parameters of criminal responsibility, retribution, rehabilitation and recidivism.
96. We therefore recommend that the Attorney General and Parliament commence an enquiry and develop legislation on the definition of ‘what constitutes a life sentence’; this may include a minimum number of years to be served before a prisoner is considered for parole or remission, or provision for prisoners under specific circumstances to serve whole life sentences. This will be in tandem with the objectives of sentencing .
65. From the above paragraphs of the Muruatetu case any reading of that decision ought to lead to the conclusion that it is upon the Legislature to enact legislation on what constitutes a life sentence and not the courts.
The Supreme Court continued to determine in the following terms :
(1) Whether the Court of Appeal Erred in Law by Substituting the Life Imprisonment Sentence with 40 years Sentence thereby Usurping the Legislative Powers to Define Sentences.
67. Article 94 of the Constitution provides that legislative authority is derived from the people and, at the national level, is vested in and exercised by Parliament, while every court within the constitutional framework has the authority to determine the constitutionality of a statute. Article 165 (3)(b) grants the High Court original jurisdiction to determine the question whether a right or fundamental freedom under the Bill of Rights has been denied, infringed, violated or threatened. The Court of Appeal, when acting within its appellate jurisdiction, is empowered to scrutinize and interpret the constitutionality or otherwise of a statute, the issue equally having been canvassed at the first instance before the High Court. The court's role with regard to the constitutionality of a statute is therefore confined to its interpretation and adjudication.
68. Courts cannot therefore extend their determination to rectifying or amending the statute in question, as this would contravene the doctrine of separation of powers, which delineates the functions of the judiciary, legislature, and executive. Courts must exercise caution when crafting remedies to avoid overstepping their judicial mandate and intruding upon legislative functions by prescribing or enacting amendments. When courts recognize the need for legislative intervention, it is both proper and imperative for them to recommend such measures to the appropriate authorities for adoption. As a Court we have invoked this remedy in various instances; in Shah & 7 others v Mombasa Bricks & Tiles Limited & 5 others (Petition 18 (E020) of 2022) [2023] KESC 106 (KLR) we suggested the consideration of reforms over the recourse parties have upon the declaration of trust by the courts and how to actualize the same, especially regarding the aspect of shareholding. In Malcolm Bell v Daniel Toroitich Arap Moi & Board of Governors Moi High School Kabarak (Application 1 of 2013) [2013] KESC23 (KLR) Hon.Justice Kaplana Rawal,DCJ in her concurring opinion made recommendations to amend Section 16 of the Supreme Court Act. In Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] KESC 53 (KLR) we urged CAK to set a timeline for the digital migration. In National Bank of Kenya Limited v Anaj Warehousing Limited (Petition No. 36 of 2014) [2015] KESC 4 (KLR) we suggested appropriate legislative action to be taken to address the gaps and inconsistencies apparent in the Advocates Act.
69. We therefore find no difficulty in finding that the Court of Appeal erred in law by substituting the life imprisonment sentence with a 40-year sentence, thereby usurping the legislative power to define sentences.
While I am in agreement with the Court of Appeal that
a mandatory indeterminate life sentence… denies a convict facing life imprisonment the opportunity to be heard in mitigation when those facing lesser sentences are allowed to be heard in mitigation.. . This is an unjustifiable discrimination, unfair and repugnant to the principle of equality before the law under article 27 of the Constitution . In addition, an indeterminate life sentence is… also inhumane treatment and violates the right to dignity under article 28,[of the Constitution]
However, this court is bound by the decision of the Supreme Court in as far as the substitution of a sentence of life imprisonment with a number of years or determinate sentence.
Be that as it may , in the Petitioner’s case, he was not handed a mandatory sentence of life imprisonment. The court meted the death sentence. That sentence was commuted to life imprisonment by decree of the Executive in the exercise powers conferred by the Constitution. To that end it does not qualify as a mandatory life imprisonment sentence. It is the exercise of discretion by the Executive as provided for in the Constitution, and in this case, removing the Petitioner from Death Row to lie imprisonment, or as it is otherwise grimly put, from ‘condemn’ to ‘lifer’.
Even in manslaughter cases the court has discretion to give a sentence up to life. It is in the sexual offences act where mandatory life sentence is prescribed in some cases,
The Petitioner has approached the court as though the court had imposed upon him the indeterminate sentence. It is also his position that he was denied the opportunity to mitigate.
However, it is clear from his own petition that the sentence came upon him through the Constitutional acts of the Executive
Article 133 of the Constitution provides for the exercise of the Power of mercy
(1) On the petition of any person, the President may exercise a power of mercy in accordance with the advice of the Advisory Committee established under clause (2), by—
(a) granting a free or conditional pardon to a person convicted of an offence;
(b) postponing the carrying out of a punishment, either for a specified or indefinite period;
(c) substituting a less severe form of punishment ; or
(d) remitting all or part of a punishment. (Emphasis mine)
(2) There shall be an Advisory Committee on the Power of Mercy, comprising—
(a) the Attorney-General;
(b) the Cabinet Secretary responsible for correctional services; and
(c) at least five other members as prescribed by an Act of Parliament, none of whom may be a state officer or in public service.
(3) Parliament shall enact legislation to provide for—
(a) the tenure of the members of the Advisory Committee;
(b) the procedure of the Advisory Committee; and
(c) criteria that shall be applied by the Advisory Committee in formulating its advice.
(4) The Advisory Committee may take into account the views of the victims of the offence in respect of which it is considering making recommendations to the President.
Parliament enacted The Power of Mercy Act Cap. 94 which at s. 22. Sets out the Criteria to be applied by the Committee in the determination the recommendation to be made to the President;
(1)The Committee shall, in making a recommendation under Article 133 of the Constitution and section 21(1)(c) consider—
(a) the age of the convicted criminal prisoner at the time of the commission of the offence;
(b)the circumstances surrounding the commission of the offence;
(c)whether the person, for whose benefit the petition is made, is a first offender ;
(d)the nature and seriousness of the offence ;
(e)the length of period so far served by the convicted criminal prisoner;
(f) the length of period served by the convicted criminal prisoner in remand ;
(g) the personal circumstances of the offender at the time of making the petition, including mental and physical health and any disabilities;
(h)the interest of the State and community ;
(i)the post-conviction conduct , character and reputation of the convicted criminal prisoner;
(j)the official recommendations and reports from the State organ or department responsible for correctional services;
(k)where the petitioner has opted to pursue other available remedies, the outcome of such avenue; and
(l)the representation of the victim where applicable.
(2)In addition to the requirements under subsection (1), the Committee may consider—
(a)where applicable, a report of fellow inmates; or
(b)reports
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