REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT VIHIGA
CRIMINAL PETITION NO E012B OF 2023
HILLARY ODARI.…………………………………………………………….PETITIONER
VERSUS
REPUBLIC………………………………………………….…………………RESPONDENT
INTRODUCTION
1. The Petitioner herein was charged with the offence of robbery with violence contrary to Section 296(2) of the Penal Code Cap 63 (Laws of Kenya). He was convicted and sentenced to death.
2. He lodged an appeal in Kakamega High Court Criminal Appeal No 65 of 2013 . The same was dismissed. He informed this court that he never appealed to the Court of Appeal.
3. On 14th November 2023, he filed a Notice of Motion application and a Petition, both dated 19th October 2023, seeking resentencing to the least prescribed sentence other than the life sentence.
4. In his said application that was supported by his Affidavit, he averred that the death sentence was commuted to life imprisonment following the presidential pardon. He averred that the life sentence was excessive, arbitrary, demeaning, degrading, and inhumane. He stated that he had been in prison for a period of eleven (11) years and had now been rehabilitated and reformed. He added that he was remorseful and hence urged this court to exercise its judicial discretion and re-sentence him to a fair and legal sentence.
5. His Written Submissions dated 26th July 2024 were filed on 20th August 2024 while those of the Respondent were dated 30th July 2025 and filed on 1st August 2025. The Ruling herein is based on the said Written Submissions that both parties relied upon in their entirety.
LEGAL ANALYSIS
6. The Petitioner invoked Section 26(2) of the Penal Code and stated that this court was clothed with the power to exercise its judicial discretion in regard to Section 296(2) of the Penal Code. He maintained that the sentence was excessive as it deprived him of his life contrary to the dictates of the Constitution of Kenya. He was emphatic that the death sentence was demeaning, harsh, and inhumane, and deprived one of dignity contrary to Article 28 of the Constitution. He cited Ramadhan Salim Shaban & Others vs Republic Cr. Pet No.5 of 2022, where Sewe J held that the mandatory sentences as provided under Section 296(2) and 297(2) of the Penal Code were unconstitutional.
7. He cited the case of Makumbi Subui Wanyeso vs Republic CA. CR. Appeal No. 110 of 2022 and that of Vinter and Others Vs The United Kingdom, (App. No. 66069/09,130/10) (eKLR citations not given) as cited in Muruatetu case in which the court held inter alia that, what could have been the justification for detention at the start of the sentence, was not necessarily so after a lengthy period into the service of the sentence. He added that if a prisoner was incarcerated without any prospect of release and without the possibility of having his life sentence reviewed, there was the risk that he might never atone for his offence. He argued that whatever the prisoner did in prison, however exceptional his progress towards rehabilitation, his punishment remained fixed and unreviewable.
8. He also urged this court to consider the time he spent in custody prior to his conviction in line with Section 333(2) of the Criminal Procedure Code. He contended that he was arrested on 31st March 2012 and was sentenced on 5th April 2013. He placed reliance on the case of Wilson Kibor Bethwell vs Republic (eKLR citation not provided).
9. He submitted that he was a first- time offender, remorseful for his heinous actions, and ready to be reintegrated into society. He pointed out that he had served a cumulative of twelve (12) years imprisonment and that was sufficient to ensure deterrence, public protection, and punishment. He urged this court to give him a determinate sentence, preferably the term already served.
10. In its response, the Respondent invoked Articles 50(2)(q), (6) and 165 of the Constitution of Kenya and submitted that the Applicant had not appealed to the Court of Appeal hence, this court could hear his resentencing application. It cited Petition No 15 and 16 (Consolidated) of 2015 Francis Karioko Muruatetu & Another vs Republic (eKLR citation not given), where it was held that the High Court could entertain an application for re-sentencing upon being satisfied that the appeal at the Court of Appeal had been withdrawn.
11. It asserted that in considering the said decision and Sections 216 and 329 of the Criminal Procedure Code, the Petitioner was not given an opportunity to mitigate in the Trial Court before sentencing. It added that the decision in the Muruatetu Case did not, however, outlaw the death sentence, and still applied as the discretionary maximum sentence.
12. In the case of Mbugua & 6 Others vs Attorney General & 3 Others (Constitutional Petition E002 & E003 of 2024 (Consolidated)) [2025] KEHC 1248 (KLR) (24 February 2025) (Judgment), this very court held that it was discriminatory to deny offenders who had been convicted of the offence of robbery with violence and attempted robbery with violence the right to have their mitigation during trial considered, while the non-capital offenders enjoyed that right.
13. It recognised that under Article 27(1) of the Constitution of Kenya, persons who had been convicted for robbery with violence and attempted robbery with violence were also equal before the law, they had a right to be protected before the law, and had to derive equal benefit from the law as the non- capital offenders.
14. The court’s decision was in line with the directions of the Supreme Court on 6th July 2021 in Francis Karioko Muruatetu and Another vs Republic [2017] eKLR (commonly now known as Muruatetu II) that the question of constitutionality of the death sentence in robbery with violence cases ought to commence at the High Court and thereafter be escalated to the Court of Appeal, if necessary. It rendered itself as follows:-
“ 46.To clear the confusion that exists with regard to the mandatory death sentence in offences other than murder, we direct in respect of other capital offences such as treason under section 40 (3), robbery with violence under section 296 (2), and attempted robbery with violence under section 297 (2) of the Penal Code, that a challenge on the constitutional validity of the mandatory death penalty in such cases should be properly filed, presented, and fully argued before the High Court and escalated to the Court of Appeal, if necessary, at which a similar outcome as that in this case may be reached. Muruatetu as it now stands cannot directly be applicable to those cases (emphasis court).”
15. In the case of Ramadhan & 8 others v General & another (Petition 5 of 2022 & Constitutional Petition 6 of 2022 (Consolidated)) [2024] KEHC 1173 (KLR ) (6 February 2024) (Judgment), Sewe J looked at the mandatory nature of the death sentence under Section 296(2) and 297(2) of the Penal Code and declared it unconstitutional. She further directed that the petitioners be presented before the respective sentencing courts for sentence re-hearing upon appropriate applications.
16. In the case of Mbugua & 6 Others vs The Hon Attorney General (Supra ) as consolidated with Alfred Eyase Kinamundu & 2 Others vs the Hon Attorney General & Others (Supra), this court looked at the aspect of re-sentencing of persons who had been convicted under Section 296(2) and Section 297(2) of the Penal Code and rendered itself as follows:-
“67.The purpose of incarceration is rehabilitation and reformation of prisoners. It was psychological torture for a prison to take numerous courses to improve himself or herself in prison but never use those skills in the society. Indeed, learning of skills had the purpose of easing the integration of prisoners back into the society. Life imprisonment denied convicts who were on life sentence hope for a better future. It was discriminatory that all convicts had hope of going home other than those who had been convicted of the offence of robbery with violence and attempted robbery with violence. There had to be a determinate period within which a person had to atone for their sins.”
17. The long indeterminate incarceration while undergoing rehabilitation programs without the prospect of being released was, in the considered opinion of this court, a blatant violation of the Petitioners’ right to dignity contrary to Article 28 of the Constitution of Kenya.
18. For those who had been convicted and did not have the benefit of mitigation before being sentenced, such as the Petitioners herein, they had a reprieve in Article 50(2) of the Constitution of Kenya, which set out some of the principles that were considered to constitute a fair trial. One of these principles was the right to lodge an appeal or apply for review in a higher court, if convicted as stipulated in Article 50 (2) (q)) of the Constitution of Kenya.
19. Such mitigation, which would include the behaviour while in prison and proof of reformation and possibility of reintegration into society, as this would enable an appellate and/or review court to have a holistic view of the case. During appeal or review of a case, a higher court would have had all the facts and circumstances of the accused on record to enable it to assess the appropriate sentence where there was merit for a sentence reduction.
20. In this regard, it found that applicants seeking re-sentencing ought to file documents to support their mitigating factors. These documents could include certificates of programmes they had undergone in prison leading to their rehabilitation and recommendation letters from the In charges of prisons.
21. While considering the present application for re-sentencing, this court noted that Appellants who included Francis Karioko Muruatetu in the Court of Appeal case of Gachanja & 7 Others (Criminal Appeal 51 of 2004) [2011] KECA 402 (KLR) (20 May 2011) Judgment were re-sentenced by the High Court on 16th December 2019 in Misc Criminal No 394 of 2017 consolidated with Misc Criminal Applications Nos 614, 28, 560, 589, 590 and 586 of 2018 .
22. This court had both original and appellate jurisdiction to hear criminal and civil cases as provided in Article 165(3)(a) of the Constitution of Kenya. It could, further, review the decision of the lower court as provided under Article 50 (2) (q) of the Constitution of Kenya. It did not, therefore, have to send the lower court file back to the lower court for re-sentencing.
23. To avoid further delays in this matter, this court finds it prudent to consider the mitigation and re-sentencing of the Petitioner herein. It was necessary that the Petitioner furnishes this court with supporting documents, including the Recommendation letter from the In- Charge of the prison where he was currently incarcerated, in his mitigation. It was prudent that the issue of the time he spent in custody during trial be considered after his mitigation.
DISPOSITION
24. For the foregoing reasons, the upshot of this court’s decision was that the Petitioner’s Notice of Motion application that was dated 19 th October 2023 and filed on 14 th November 2023 was merited and the same be and is hereby allowed in the following terms:-
a. THAT the Petitioner provide documents to support his mitigation by 24 th July 2026.
b. THAT the Probation Office file a Pre-Sentence Report by 24 th July 2026.
c. THAT the Petitioner be and is hereby directed to appear before this court for mitigation and sentencing on 30 th July 2026 at 11.00 am.
25. It is so ordered.
DATED and SIGNED at VIHIGA this 25 th day of May 2026
J. KAMAU
JUDGE
HCCR PETITION NO E012 OF 2023 4
IN THE HIGH COURT OF KENYA AT VIHIGA
CRIMINAL PETITION NO E012B OF 2023
HILLARY ODARI.…………………………………………………………….PETITIONER
VERSUS
REPUBLIC………………………………………………….…………………RESPONDENT
INTRODUCTION
1. The Petitioner herein was charged with the offence of robbery with violence contrary to Section 296(2) of the Penal Code Cap 63 (Laws of Kenya). He was convicted and sentenced to death.
2. He lodged an appeal in Kakamega High Court Criminal Appeal No 65 of 2013 . The same was dismissed. He informed this court that he never appealed to the Court of Appeal.
3. On 14th November 2023, he filed a Notice of Motion application and a Petition, both dated 19th October 2023, seeking resentencing to the least prescribed sentence other than the life sentence.
4. In his said application that was supported by his Affidavit, he averred that the death sentence was commuted to life imprisonment following the presidential pardon. He averred that the life sentence was excessive, arbitrary, demeaning, degrading, and inhumane. He stated that he had been in prison for a period of eleven (11) years and had now been rehabilitated and reformed. He added that he was remorseful and hence urged this court to exercise its judicial discretion and re-sentence him to a fair and legal sentence.
5. His Written Submissions dated 26th July 2024 were filed on 20th August 2024 while those of the Respondent were dated 30th July 2025 and filed on 1st August 2025. The Ruling herein is based on the said Written Submissions that both parties relied upon in their entirety.
LEGAL ANALYSIS
6. The Petitioner invoked Section 26(2) of the Penal Code and stated that this court was clothed with the power to exercise its judicial discretion in regard to Section 296(2) of the Penal Code. He maintained that the sentence was excessive as it deprived him of his life contrary to the dictates of the Constitution of Kenya. He was emphatic that the death sentence was demeaning, harsh, and inhumane, and deprived one of dignity contrary to Article 28 of the Constitution. He cited Ramadhan Salim Shaban & Others vs Republic Cr. Pet No.5 of 2022, where Sewe J held that the mandatory sentences as provided under Section 296(2) and 297(2) of the Penal Code were unconstitutional.
7. He cited the case of Makumbi Subui Wanyeso vs Republic CA. CR. Appeal No. 110 of 2022 and that of Vinter and Others Vs The United Kingdom, (App. No. 66069/09,130/10) (eKLR citations not given) as cited in Muruatetu case in which the court held inter alia that, what could have been the justification for detention at the start of the sentence, was not necessarily so after a lengthy period into the service of the sentence. He added that if a prisoner was incarcerated without any prospect of release and without the possibility of having his life sentence reviewed, there was the risk that he might never atone for his offence. He argued that whatever the prisoner did in prison, however exceptional his progress towards rehabilitation, his punishment remained fixed and unreviewable.
8. He also urged this court to consider the time he spent in custody prior to his conviction in line with Section 333(2) of the Criminal Procedure Code. He contended that he was arrested on 31st March 2012 and was sentenced on 5th April 2013. He placed reliance on the case of Wilson Kibor Bethwell vs Republic (eKLR citation not provided).
9. He submitted that he was a first- time offender, remorseful for his heinous actions, and ready to be reintegrated into society. He pointed out that he had served a cumulative of twelve (12) years imprisonment and that was sufficient to ensure deterrence, public protection, and punishment. He urged this court to give him a determinate sentence, preferably the term already served.
10. In its response, the Respondent invoked Articles 50(2)(q), (6) and 165 of the Constitution of Kenya and submitted that the Applicant had not appealed to the Court of Appeal hence, this court could hear his resentencing application. It cited Petition No 15 and 16 (Consolidated) of 2015 Francis Karioko Muruatetu & Another vs Republic (eKLR citation not given), where it was held that the High Court could entertain an application for re-sentencing upon being satisfied that the appeal at the Court of Appeal had been withdrawn.
11. It asserted that in considering the said decision and Sections 216 and 329 of the Criminal Procedure Code, the Petitioner was not given an opportunity to mitigate in the Trial Court before sentencing. It added that the decision in the Muruatetu Case did not, however, outlaw the death sentence, and still applied as the discretionary maximum sentence.
12. In the case of Mbugua & 6 Others vs Attorney General & 3 Others (Constitutional Petition E002 & E003 of 2024 (Consolidated)) [2025] KEHC 1248 (KLR) (24 February 2025) (Judgment), this very court held that it was discriminatory to deny offenders who had been convicted of the offence of robbery with violence and attempted robbery with violence the right to have their mitigation during trial considered, while the non-capital offenders enjoyed that right.
13. It recognised that under Article 27(1) of the Constitution of Kenya, persons who had been convicted for robbery with violence and attempted robbery with violence were also equal before the law, they had a right to be protected before the law, and had to derive equal benefit from the law as the non- capital offenders.
14. The court’s decision was in line with the directions of the Supreme Court on 6th July 2021 in Francis Karioko Muruatetu and Another vs Republic [2017] eKLR (commonly now known as Muruatetu II) that the question of constitutionality of the death sentence in robbery with violence cases ought to commence at the High Court and thereafter be escalated to the Court of Appeal, if necessary. It rendered itself as follows:-
“ 46.To clear the confusion that exists with regard to the mandatory death sentence in offences other than murder, we direct in respect of other capital offences such as treason under section 40 (3), robbery with violence under section 296 (2), and attempted robbery with violence under section 297 (2) of the Penal Code, that a challenge on the constitutional validity of the mandatory death penalty in such cases should be properly filed, presented, and fully argued before the High Court and escalated to the Court of Appeal, if necessary, at which a similar outcome as that in this case may be reached. Muruatetu as it now stands cannot directly be applicable to those cases (emphasis court).”
15. In the case of Ramadhan & 8 others v General & another (Petition 5 of 2022 & Constitutional Petition 6 of 2022 (Consolidated)) [2024] KEHC 1173 (KLR ) (6 February 2024) (Judgment), Sewe J looked at the mandatory nature of the death sentence under Section 296(2) and 297(2) of the Penal Code and declared it unconstitutional. She further directed that the petitioners be presented before the respective sentencing courts for sentence re-hearing upon appropriate applications.
16. In the case of Mbugua & 6 Others vs The Hon Attorney General (Supra ) as consolidated with Alfred Eyase Kinamundu & 2 Others vs the Hon Attorney General & Others (Supra), this court looked at the aspect of re-sentencing of persons who had been convicted under Section 296(2) and Section 297(2) of the Penal Code and rendered itself as follows:-
“67.The purpose of incarceration is rehabilitation and reformation of prisoners. It was psychological torture for a prison to take numerous courses to improve himself or herself in prison but never use those skills in the society. Indeed, learning of skills had the purpose of easing the integration of prisoners back into the society. Life imprisonment denied convicts who were on life sentence hope for a better future. It was discriminatory that all convicts had hope of going home other than those who had been convicted of the offence of robbery with violence and attempted robbery with violence. There had to be a determinate period within which a person had to atone for their sins.”
17. The long indeterminate incarceration while undergoing rehabilitation programs without the prospect of being released was, in the considered opinion of this court, a blatant violation of the Petitioners’ right to dignity contrary to Article 28 of the Constitution of Kenya.
18. For those who had been convicted and did not have the benefit of mitigation before being sentenced, such as the Petitioners herein, they had a reprieve in Article 50(2) of the Constitution of Kenya, which set out some of the principles that were considered to constitute a fair trial. One of these principles was the right to lodge an appeal or apply for review in a higher court, if convicted as stipulated in Article 50 (2) (q)) of the Constitution of Kenya.
19. Such mitigation, which would include the behaviour while in prison and proof of reformation and possibility of reintegration into society, as this would enable an appellate and/or review court to have a holistic view of the case. During appeal or review of a case, a higher court would have had all the facts and circumstances of the accused on record to enable it to assess the appropriate sentence where there was merit for a sentence reduction.
20. In this regard, it found that applicants seeking re-sentencing ought to file documents to support their mitigating factors. These documents could include certificates of programmes they had undergone in prison leading to their rehabilitation and recommendation letters from the In charges of prisons.
21. While considering the present application for re-sentencing, this court noted that Appellants who included Francis Karioko Muruatetu in the Court of Appeal case of Gachanja & 7 Others (Criminal Appeal 51 of 2004) [2011] KECA 402 (KLR) (20 May 2011) Judgment were re-sentenced by the High Court on 16th December 2019 in Misc Criminal No 394 of 2017 consolidated with Misc Criminal Applications Nos 614, 28, 560, 589, 590 and 586 of 2018 .
22. This court had both original and appellate jurisdiction to hear criminal and civil cases as provided in Article 165(3)(a) of the Constitution of Kenya. It could, further, review the decision of the lower court as provided under Article 50 (2) (q) of the Constitution of Kenya. It did not, therefore, have to send the lower court file back to the lower court for re-sentencing.
23. To avoid further delays in this matter, this court finds it prudent to consider the mitigation and re-sentencing of the Petitioner herein. It was necessary that the Petitioner furnishes this court with supporting documents, including the Recommendation letter from the In- Charge of the prison where he was currently incarcerated, in his mitigation. It was prudent that the issue of the time he spent in custody during trial be considered after his mitigation.
DISPOSITION
24. For the foregoing reasons, the upshot of this court’s decision was that the Petitioner’s Notice of Motion application that was dated 19 th October 2023 and filed on 14 th November 2023 was merited and the same be and is hereby allowed in the following terms:-
a. THAT the Petitioner provide documents to support his mitigation by 24 th July 2026.
b. THAT the Probation Office file a Pre-Sentence Report by 24 th July 2026.
c. THAT the Petitioner be and is hereby directed to appear before this court for mitigation and sentencing on 30 th July 2026 at 11.00 am.
25. It is so ordered.
DATED and SIGNED at VIHIGA this 25 th day of May 2026
J. KAMAU
JUDGE
HCCR PETITION NO E012 OF 2023 4