RULING
1. The Applicant has filed an Application dated 28th April 2025 seeking a review of sentence in Criminal Case No. 9 of 2005 at Kericho, in which he was convicted on two counts of murder contrary to Section 203 as read with Section 204 of the Penal Code and sentenced to suffer death. That sentence was subsequently commuted to life imprisonment by the President in 2016, and the Applicant is presently serving that life sentence. The Application seeks a review of the sentence he is now serving, and is grounded on the following: that under Article 50(2)(p) of the Constitution he is entitled to the benefit of the least severe of the prescribed punishments; that a sentence imposed without an opportunity to mitigate offends Sections 216 and 329 of the Criminal Procedure Code and paragraph 4.1 of the Sentencing Policy Guidelines, 2016; and that this Court has jurisdiction to hear and determine the Application under Article 165(3)(b) of the Constitution, together with its jurisdiction to hear and determine violations of fundamental rights and to grant appropriate remedies.
2. The State opposed the Application. It submitted that the Court lacks jurisdiction to interfere with a sentence already pronounced and affirmed on appeal, and that to do so would amount to sitting on appeal over a decision of a court of coordinate or superior jurisdiction. It submitted further that the death sentence imposed was, at the material time, the only lawful sentence prescribed under Section 204 of the Penal Code, and that the Applicant, having already exhausted his right of appeal, had not demonstrated any fresh violation of his rights entitling him to further relief.
3. Analysis and Determination
4. Although the Application is framed as one for review rather than for re-sentencing, the substance of the prayers sought is a request that the sentence the Applicant is presently serving be set aside and that he be afforded an opportunity to mitigate before a fresh sentence is imposed. The Applicant is unrepresented, and this Court will, in the circumstances, look to the substance of the Application rather than its form.
5. The Applicant was, on 9th May 2006, charged with two counts of murder contrary to Section 203 as read with Section 204 of the Penal Code. The particulars of the offence in Count I were that on 2nd March 2005 at Kericho Township within Kericho District, Rift Valley Province, the Applicant murdered Kevin Kiprono; and in Count II, that on the same date and at the same place, he murdered Vivian Chepkirui.
6. Upon conclusion of the trial, the Applicant was found guilty on both counts of murder and, on 23rd July 2009, sentenced to death, that being the sentence then prescribed as mandatory under Section 204 of the Penal Code. The Applicant appealed against his conviction and sentence to the Court of Appeal, which, on 21st December 2012, dismissed the appeal and upheld both the conviction and the death sentence. The death sentence imposed by this Court therefore stood affirmed.
7. The Court takes judicial notice that in 2016, the President gave a pardon to all death row inmates, and the Applicant's death sentence was commuted to life imprisonment, acting under Article 133 of the Constitution and the Power of Mercy Act, 2011, on the advice of the Power of Mercy Advisory Committee. That commutation was an exercise of executive clemency, not a judicial act. It involved no hearing in mitigation, no judicial evaluation of the aggravating and mitigating factors particular to the Applicant, and no exercise of sentencing discretion by any court. It therefore did not, of itself, cure the constitutional defect identified in Muruatetu I — namely, the denial of an opportunity to be heard in mitigation by a court before sentence was passed.
8. Indeed, the Applicant's position mirrors that of the petitioners in Muruatetu itself: Francis Muruatetu and Wilson Mwangi had likewise had their death sentences commuted to life imprisonment by presidential mercy before petitioning the Supreme Court, and the Court nonetheless found the earlier denial of mitigation actionable and remitted their case for a judicial re-hearing on sentence. This is further consistent with the recommendations of the Attorney-General's Task Force, as adopted in the Muruatetu II directions, that all offenders subject to the mandatory death penalty — including those convicted prior to 2010 who are serving sentences commuted to life imprisonment — are eligible to have their entitlement to mitigation considered.
9. This Court must next address the jurisdictional objection raised by the State. It is correct that, ordinarily, a court will not reopen a sentence that has been affirmed on appeal, as that would offend the finality of appellate decisions and amount to this Court sitting in appeal over the Court of Appeal. However, a distinction must be drawn between an appellate court that itself imposes or varies a sentence on appeal, and one that merely dismisses the appeal and leaves the sentence of the trial court undisturbed. In the former case, the appellate court becomes the sentencing court for purposes of any future re-sentencing, and any application must accordingly be made to that court. In the latter case, the trial court remains the sentencing court, since the sentence it pronounced was never displaced but simply left to stand. In the present case, the Court of Appeal did not impose a fresh sentence or vary the sentence in any way; it dismissed the appeal and affirmed the sentence of this Court. Nor did the President's subsequent commutation of sentence in 2016 alter this position, since, as found in paragraph 6 above, that was an executive and not a judicial act, and cannot operate to shift or confer judicial sentencing jurisdiction.
10. This Court therefore remains the proper forum. This approach finds support in the materially identical facts of Irene Nekesa Peter v Republic [2019] eKLR, where the applicant had been sentenced to death by the trial court, her appeal to the Court of Appeal was dismissed and the sentence confirmed, and the High Court nonetheless proceeded, following Muruatetu, to entertain the application. I am satisfied, on this authority and for the reasons given above, that this Court has jurisdiction to entertain the present Application notwithstanding the Court of Appeal's affirmation of sentence in 2012 and the subsequent executive commutation of sentence in 2016.
11. Turning to the merits, the decisions of both this Court and the Court of Appeal were rendered before the Supreme Court's decision in Francis Karioko Muruatetu & Another v Republic [2017] eKLR, which declared the mandatory death sentence prescribed for the offence of murder under Section 204 of the Penal Code unconstitutional, principally on the ground that it deprived the trial court of the discretion not to impose a death sentence in appropriate cases. The Supreme Court was emphatic that a convicted person must be given a genuine opportunity to mitigate, and that mitigation must be considered as a matter of substance and not treated as a mere formality.
12. In its subsequent directions of 6th July 2021 (the Muruatetu II directions), the Supreme Court reaffirmed and elaborated on the factors to guide a court in weighing sentence for murder, namely: (a) the age of the offender; (b) whether the offender is a first offender; (c) whether the offender pleaded guilty; (d) the character and record of the offender; (e) whether the offence was committed in response to gender-based violence; (f) the manner in which the offence was committed on the victim; (g) the physical and psychological effect of the offence on the victim's family; (h) the remorsefulness of the offender; (i) the possibility of reform and social re-adaptation of the offender; and (j) any other factor the court considers relevant.
13. The evidence on record shows that the Applicant, for undisclosed reasons, hacked the deceased — two young children — on their heads with a machete-like sword, inflicting deep and fatal cuts. The force required to inflict such injuries, and the testimony of PW2 that the Applicant was “shaking with rage” at the time, leave no doubt that the attack was deliberate, premeditated, and intended to cause death. These are significant aggravating factors which this Court weighs in the determination that follows.
14. I have had regard to comparable, persuasive decisions in which applicants sentenced to death for murder were, upon consideration of mitigation following Muruatetu, resentenced to determinate terms — for instance Stephen Mwiti v Republic [2020] eKLR, Joseph Mwangi Maina v Republic [2020] eKLR, and Irene Nekesa Peter v Republic [2019] eKLR, in which the applicants were resentenced to terms of between 20 and 25 years' imprisonment. These decisions illustrate the range of outcomes properly available to a court exercising ordinary sentencing discretion once mitigation is considered; they do not establish any presumption in favour of a reduced term, and the outcome in each case necessarily turns on its own facts, including the mitigating material, if any, placed before the court.
15. I have also considered the observations of the European Court of Human Rights in Vinter and Others v United Kingdom (Applications nos. 66069/09, 130/10 and 3896/10), to the effect that the justification for continued detention may shift over the course of a sentence, and that a sentence of indefinite duration ought, in principle, to be susceptible to periodic review. These observations are noted for their persuasive value on the general purposes of punishment — deterrence, retribution, public protection and rehabilitation — which this Court weighs below. They are not, however, invoked as a basis for this Court to declare life imprisonment unconstitutional or to fix, in the place of Parliament, a determinate ceiling on what a sentence of life imprisonment should mean.
16. In this regard, this Court is mindful of the Supreme Court's decision in Republic v Manyeso (Petition E013 of 2024) [2025] KESC 16 (KLR), delivered on 11th April 2025, in which the Court of Appeal's substitution of a life sentence with a fixed term of 40 years was set aside, the Supreme Court holding that the substitution of mandatory or indeterminate sentences with alternative, court-fashioned sentences is a usurpation of legislative authority and offends the doctrine of separation of powers. This Court does not, by this Ruling, purport to declare life imprisonment unconstitutional, nor does it treat Manyeso as foreclosing the Applicant's distinct entitlement, under Muruatetu I and II, to have any mitigating circumstances heard and weighed before sentence is finally determined. What Manyeso confirms is that life imprisonment remains a lawful sentence in Kenya, and that this Court's task is not to invent a substitute term but to determine, upon weighing the material before it, whether life imprisonment continues to be the appropriate sentence for this Applicant.
17. The foundation of the Applicant's claim is Article 50(2)(p) of the Constitution, which entitles a convicted person to the benefit of the least severe of the prescribed punishments for an offence, where the prescribed punishments have changed between the commission of the offence and sentencing. Read together with Article 25, which renders the right to a fair trial non-derogable, the denial of an opportunity to mitigate before the imposition of a mandatory death sentence — as occurred here in 2009 — was a violation of that right. This is precisely the wrong that Muruatetu I and II were designed to remedy, and the Applicant is entitled to have that opportunity afforded to him.
18. As the Court of Appeal's decision affirming sentence was rendered in 2012, five years before Muruatetu, it could not have addressed the constitutionality of the mandatory nature of the death sentence, and this Court's consideration of the Applicant's entitlement to mitigation does not offend the doctrine of stare decisis. This position is consistent with the approach taken in Mbugua & 6 Others v Attorney General (as consolidated with Alfred Eyase Kinamundu & 2 Others v Attorney General and Ramadhan & 8 Others v Attorney General), and reflects the settled position that the powers of this Court to resentence are exercised to correct a breach, violation or infringement of a right in the Bill of Rights.
Disposition
For the foregoing reasons, I find and hold as follows:
This Court has jurisdiction to entertain this Application notwithstanding the Court of Appeal upholding the sentence on 21st December 2012 and the President's commutation of sentence in 2016, for the reasons set out in paragraphs 8 and 9 above. The Applicant shall be granted an opportunity to mitigate. A pre-sentence report to be filed.
Delivered at Kericho on 16th July 2026
In the presence of
Ms. Loice Osoro for the state
Haron - Applicant
C/A Irene Chelang'at
1. The Applicant has filed an Application dated 28th April 2025 seeking a review of sentence in Criminal Case No. 9 of 2005 at Kericho, in which he was convicted on two counts of murder contrary to Section 203 as read with Section 204 of the Penal Code and sentenced to suffer death. That sentence was subsequently commuted to life imprisonment by the President in 2016, and the Applicant is presently serving that life sentence. The Application seeks a review of the sentence he is now serving, and is grounded on the following: that under Article 50(2)(p) of the Constitution he is entitled to the benefit of the least severe of the prescribed punishments; that a sentence imposed without an opportunity to mitigate offends Sections 216 and 329 of the Criminal Procedure Code and paragraph 4.1 of the Sentencing Policy Guidelines, 2016; and that this Court has jurisdiction to hear and determine the Application under Article 165(3)(b) of the Constitution, together with its jurisdiction to hear and determine violations of fundamental rights and to grant appropriate remedies.
2. The State opposed the Application. It submitted that the Court lacks jurisdiction to interfere with a sentence already pronounced and affirmed on appeal, and that to do so would amount to sitting on appeal over a decision of a court of coordinate or superior jurisdiction. It submitted further that the death sentence imposed was, at the material time, the only lawful sentence prescribed under Section 204 of the Penal Code, and that the Applicant, having already exhausted his right of appeal, had not demonstrated any fresh violation of his rights entitling him to further relief.
3. Analysis and Determination
4. Although the Application is framed as one for review rather than for re-sentencing, the substance of the prayers sought is a request that the sentence the Applicant is presently serving be set aside and that he be afforded an opportunity to mitigate before a fresh sentence is imposed. The Applicant is unrepresented, and this Court will, in the circumstances, look to the substance of the Application rather than its form.
5. The Applicant was, on 9th May 2006, charged with two counts of murder contrary to Section 203 as read with Section 204 of the Penal Code. The particulars of the offence in Count I were that on 2nd March 2005 at Kericho Township within Kericho District, Rift Valley Province, the Applicant murdered Kevin Kiprono; and in Count II, that on the same date and at the same place, he murdered Vivian Chepkirui.
6. Upon conclusion of the trial, the Applicant was found guilty on both counts of murder and, on 23rd July 2009, sentenced to death, that being the sentence then prescribed as mandatory under Section 204 of the Penal Code. The Applicant appealed against his conviction and sentence to the Court of Appeal, which, on 21st December 2012, dismissed the appeal and upheld both the conviction and the death sentence. The death sentence imposed by this Court therefore stood affirmed.
7. The Court takes judicial notice that in 2016, the President gave a pardon to all death row inmates, and the Applicant's death sentence was commuted to life imprisonment, acting under Article 133 of the Constitution and the Power of Mercy Act, 2011, on the advice of the Power of Mercy Advisory Committee. That commutation was an exercise of executive clemency, not a judicial act. It involved no hearing in mitigation, no judicial evaluation of the aggravating and mitigating factors particular to the Applicant, and no exercise of sentencing discretion by any court. It therefore did not, of itself, cure the constitutional defect identified in Muruatetu I — namely, the denial of an opportunity to be heard in mitigation by a court before sentence was passed.
8. Indeed, the Applicant's position mirrors that of the petitioners in Muruatetu itself: Francis Muruatetu and Wilson Mwangi had likewise had their death sentences commuted to life imprisonment by presidential mercy before petitioning the Supreme Court, and the Court nonetheless found the earlier denial of mitigation actionable and remitted their case for a judicial re-hearing on sentence. This is further consistent with the recommendations of the Attorney-General's Task Force, as adopted in the Muruatetu II directions, that all offenders subject to the mandatory death penalty — including those convicted prior to 2010 who are serving sentences commuted to life imprisonment — are eligible to have their entitlement to mitigation considered.
9. This Court must next address the jurisdictional objection raised by the State. It is correct that, ordinarily, a court will not reopen a sentence that has been affirmed on appeal, as that would offend the finality of appellate decisions and amount to this Court sitting in appeal over the Court of Appeal. However, a distinction must be drawn between an appellate court that itself imposes or varies a sentence on appeal, and one that merely dismisses the appeal and leaves the sentence of the trial court undisturbed. In the former case, the appellate court becomes the sentencing court for purposes of any future re-sentencing, and any application must accordingly be made to that court. In the latter case, the trial court remains the sentencing court, since the sentence it pronounced was never displaced but simply left to stand. In the present case, the Court of Appeal did not impose a fresh sentence or vary the sentence in any way; it dismissed the appeal and affirmed the sentence of this Court. Nor did the President's subsequent commutation of sentence in 2016 alter this position, since, as found in paragraph 6 above, that was an executive and not a judicial act, and cannot operate to shift or confer judicial sentencing jurisdiction.
10. This Court therefore remains the proper forum. This approach finds support in the materially identical facts of Irene Nekesa Peter v Republic [2019] eKLR, where the applicant had been sentenced to death by the trial court, her appeal to the Court of Appeal was dismissed and the sentence confirmed, and the High Court nonetheless proceeded, following Muruatetu, to entertain the application. I am satisfied, on this authority and for the reasons given above, that this Court has jurisdiction to entertain the present Application notwithstanding the Court of Appeal's affirmation of sentence in 2012 and the subsequent executive commutation of sentence in 2016.
11. Turning to the merits, the decisions of both this Court and the Court of Appeal were rendered before the Supreme Court's decision in Francis Karioko Muruatetu & Another v Republic [2017] eKLR, which declared the mandatory death sentence prescribed for the offence of murder under Section 204 of the Penal Code unconstitutional, principally on the ground that it deprived the trial court of the discretion not to impose a death sentence in appropriate cases. The Supreme Court was emphatic that a convicted person must be given a genuine opportunity to mitigate, and that mitigation must be considered as a matter of substance and not treated as a mere formality.
12. In its subsequent directions of 6th July 2021 (the Muruatetu II directions), the Supreme Court reaffirmed and elaborated on the factors to guide a court in weighing sentence for murder, namely: (a) the age of the offender; (b) whether the offender is a first offender; (c) whether the offender pleaded guilty; (d) the character and record of the offender; (e) whether the offence was committed in response to gender-based violence; (f) the manner in which the offence was committed on the victim; (g) the physical and psychological effect of the offence on the victim's family; (h) the remorsefulness of the offender; (i) the possibility of reform and social re-adaptation of the offender; and (j) any other factor the court considers relevant.
13. The evidence on record shows that the Applicant, for undisclosed reasons, hacked the deceased — two young children — on their heads with a machete-like sword, inflicting deep and fatal cuts. The force required to inflict such injuries, and the testimony of PW2 that the Applicant was “shaking with rage” at the time, leave no doubt that the attack was deliberate, premeditated, and intended to cause death. These are significant aggravating factors which this Court weighs in the determination that follows.
14. I have had regard to comparable, persuasive decisions in which applicants sentenced to death for murder were, upon consideration of mitigation following Muruatetu, resentenced to determinate terms — for instance Stephen Mwiti v Republic [2020] eKLR, Joseph Mwangi Maina v Republic [2020] eKLR, and Irene Nekesa Peter v Republic [2019] eKLR, in which the applicants were resentenced to terms of between 20 and 25 years' imprisonment. These decisions illustrate the range of outcomes properly available to a court exercising ordinary sentencing discretion once mitigation is considered; they do not establish any presumption in favour of a reduced term, and the outcome in each case necessarily turns on its own facts, including the mitigating material, if any, placed before the court.
15. I have also considered the observations of the European Court of Human Rights in Vinter and Others v United Kingdom (Applications nos. 66069/09, 130/10 and 3896/10), to the effect that the justification for continued detention may shift over the course of a sentence, and that a sentence of indefinite duration ought, in principle, to be susceptible to periodic review. These observations are noted for their persuasive value on the general purposes of punishment — deterrence, retribution, public protection and rehabilitation — which this Court weighs below. They are not, however, invoked as a basis for this Court to declare life imprisonment unconstitutional or to fix, in the place of Parliament, a determinate ceiling on what a sentence of life imprisonment should mean.
16. In this regard, this Court is mindful of the Supreme Court's decision in Republic v Manyeso (Petition E013 of 2024) [2025] KESC 16 (KLR), delivered on 11th April 2025, in which the Court of Appeal's substitution of a life sentence with a fixed term of 40 years was set aside, the Supreme Court holding that the substitution of mandatory or indeterminate sentences with alternative, court-fashioned sentences is a usurpation of legislative authority and offends the doctrine of separation of powers. This Court does not, by this Ruling, purport to declare life imprisonment unconstitutional, nor does it treat Manyeso as foreclosing the Applicant's distinct entitlement, under Muruatetu I and II, to have any mitigating circumstances heard and weighed before sentence is finally determined. What Manyeso confirms is that life imprisonment remains a lawful sentence in Kenya, and that this Court's task is not to invent a substitute term but to determine, upon weighing the material before it, whether life imprisonment continues to be the appropriate sentence for this Applicant.
17. The foundation of the Applicant's claim is Article 50(2)(p) of the Constitution, which entitles a convicted person to the benefit of the least severe of the prescribed punishments for an offence, where the prescribed punishments have changed between the commission of the offence and sentencing. Read together with Article 25, which renders the right to a fair trial non-derogable, the denial of an opportunity to mitigate before the imposition of a mandatory death sentence — as occurred here in 2009 — was a violation of that right. This is precisely the wrong that Muruatetu I and II were designed to remedy, and the Applicant is entitled to have that opportunity afforded to him.
18. As the Court of Appeal's decision affirming sentence was rendered in 2012, five years before Muruatetu, it could not have addressed the constitutionality of the mandatory nature of the death sentence, and this Court's consideration of the Applicant's entitlement to mitigation does not offend the doctrine of stare decisis. This position is consistent with the approach taken in Mbugua & 6 Others v Attorney General (as consolidated with Alfred Eyase Kinamundu & 2 Others v Attorney General and Ramadhan & 8 Others v Attorney General), and reflects the settled position that the powers of this Court to resentence are exercised to correct a breach, violation or infringement of a right in the Bill of Rights.
Disposition
For the foregoing reasons, I find and hold as follows:
This Court has jurisdiction to entertain this Application notwithstanding the Court of Appeal upholding the sentence on 21st December 2012 and the President's commutation of sentence in 2016, for the reasons set out in paragraphs 8 and 9 above. The Applicant shall be granted an opportunity to mitigate. A pre-sentence report to be filed.
Delivered at Kericho on 16th July 2026
In the presence of
Ms. Loice Osoro for the state
Haron - Applicant
C/A Irene Chelang'at