T
INTRODUCTION
1. The applicant in this matter is currently serving a life sentence following the president’s decision to commute death sentences 21 st November 2022 vide gazette notice No.9566 of 19 th July 2023.
2. the applicant dissatisfied with the life sentence has approached this court by way of a notice of motion dated 25the October 2024 expressed to be brought under Article 165(6) of the Constitution 2010 Rule 21 of the Practice directions and stabilization of practice and procedure the High Court Rules 2021.
APPLICANT’S CASE
3. The applicant seeks the following ORDERS:
a). That the Honourable Court be pleased to certify this matter urgent.
b). That the Honourable Court be pleased to grant a mitigation and
resentencing hearing.
4. The application is based on the following grounds: -
a. THAT the applicant was charged before the High Court at Milimani vide Criminal Case No. 97 OF 2006 with the offence of Murder Contrary to Section 203 as read with 204 of the Penal code.
b. THAT the applicant was then tried, and sentenced to Death on 1st April 2014.
c. THAT the Applicant then subsequently Filed an appeal before the Court of Appeal at Nairobi vide Criminal Appeal No. 178 OF 2016 which was dismissed on 8th February 2019.
d. THAT the Applicant having exhausted all avenues of appeal hereby
moves this Court for a mitigation and Resentencing in accordance with
the Supreme Court Ruling in Muruatetu 2 where the court ordered that
Murder Convicts are at liberty to petition their trial Court for mitigation
and Resentencing.
e. THAT the Applicant has been in prison since date of arrest in 2006.
f. THAT the applicant has gone through various Rehabilitative programs
while in prison.
g). THAT the Applicant prays that this Hon. Court to review his sentence
to a lenient sentence putting into account that he has been in prison
since 2006 in accordance to Section 333 (2) of the Criminal Procedure
Code.
h. THAT the Applicant prays that the remaining sentence (if any) be
ordered that he serve under community service (probation)
5. The application is supported by the affidavit JOSEPH KINYURU KIRIMBI the applicant who deposes that he is a male adult of sound mind and an inmate convicted of Murder Contrary to Section 203 as read with 204 of the Penal code and sentenced to serve Life imprisonment a term he is currently serving at Kamiti Maximum Security Prison.
6. THAT he was charged before the High Court at Milimani vide Criminal Case No. 97 OF 2006 with the offence of Murder Contrary to Section 203 as read with 204 of the Penal code.
7. THAT he was then tried, and sentenced to Death on 1st April 2014.
8. THAT he filed an appeal before the Court of Appeal at Nairobi vide Criminal Appeal No. 178 OF 2016 which was dismissed on 8th February 2019.
9. The applicant deposed that having exhausted all avenues of appeal, he now moves this Court for a mitigation and Resentencing in accordance with the Supreme Court Ruling in Muruatetu 2 where the court ordered that Murder Convicts are at liberty to petition their trial Court for mitigation and Resentencing.
10. He further deposed that he has been in prison since date of arrest in 2006.
11. The applicant further asserted that he has under gone various Rehabilitative programs while in prison.
12. The applicant further urged this court to review his sentence to a lenient sentence putting into account that he has been in prison since 2006 in accordance to Section 333 (2) of the Criminal Procedure Code.
13. He went on to urge the court to consider ordering that the remaining sentence (if any) be ordered to be served under community service (probation).
14. The applicant was represented at the hearing of this application by Ms Ngángá Advocate who adopted the application as filed by the applicant and argued that this court has the jurisdiction to hear and determine the application notwithstanding the fact that the applicant has exhausted his right of appeal and is currently serving a life sentence rising from a decision of the committee on prerogative on mercy which was endorsed by the president. Counsel relied on Article 163 (3) (v) and Article 50 (2) (p) and (q).
15. Counsel for the applicant argued that although the applicant’s death sentence had been commuted on 24 th October 2016 the same was not raised before the Court of Appeal and hence the decision by the Court of Appeal upholding the death sentence. Counsel further submitted that the applicant was a beneficiary of the president’s order committing death sentences in 2022 thus the applicant is currently serving a life imprisonment.
16. Ms Ngángá argued that although life sentence is legal and constitutional this court has the power to review the same and grant a determinate sentence. Counsel urged the court to consider the case of Biwott Vs Republic Petition No. 23 of 2018 (2023) Eklr where the applicant having lost his appeal before the Court of Appeal he went to the High Court and his sentence was reviewed to 45 years.
17. Counsel further informed this court that in the Biwott case he had been charged together with a co-accused by the name Jebet who filed Criminal Petition No. E307 of 2023 which was heard and determined by the Hon. Lady Justice Ominde who similarly sentenced Jebet to a period of 45 years.
18. The applicant further submitted that one Daniel Njoroge Kimotho who was his co- accused in the initial matter approached this court vide Miscellaneous Criminal Application No. E269 of 2024 which was heard before Mwamuye J, and was resentenced to 23 years.
19. On the strength of those decisions, the applicant’s counsel urged this court to consider reviewing his client’s sentence arguing the president’s decision to commute sentence is administrative and therefore capable of review by this court.
20. The applicant anchored his application on the right to be heard noting that the Supreme Court in determining the Muruatetu Case did not pronounce itself on the presidential power to commute sentences thus it was necessary for this court to pronounce itself on the matter.
21. Counsel further submitted that the issue of the exercise of the presidential power to commute sentences was not canvassed before Hon. Justice Mwamuye.
RESPONDENT’S CASE
22. Ms Ogega Prosecution Counsel opposed the application citing the provisions of Section 23 of the Powers of Mercy Act. In her submission, Ms Ogega maintained that the president’s power to commute sentence is final and can only be revisited upon the emergence of new grounds as envisaged under Section 24 of the Act. Counsel argued that if for instance a president was to release anyone under the Act through presidential pardon the Director of Public Prosecutions has no power to move the High Court seeking a reversal of the decision of the president.
23. The prosecution counsel further urged the court to consider that since the president had commuted the sentence to life imprisonment and the Supreme Court in Julius Kitsao Manyeso Vs Republic (Petition E013 od 2024) [2025] KESC 16 (KLR)(11 April 2025) (Judgment) had found that life sentence is lawful there was no justification at all for this court to intervene and further review the sentence.
24. According to Ms Ogega, the court should apply strict interpretation of Section 23 of the Power of Mercy Act and find the decision of the president to be final and unassailable. Counsel for the prosecution urged the court to decline jurisdiction since the last court to have dealt with the issue of the sentence was the court of Appeal, thus the proper court for the applicant to have returned to, if at all he were to, would have been the court of Appeal and not this court.
25. Further, Ms Ogega argued that the decision by the Hon. Justice Mwamuye being a decision of a court of concurrent jurisdiction does not bind this court and therefore this court should not be inclined to follow it.
26. Ms Ngángá responded arguing that the provisions of Sections 23 and 24 of the Powers of Mercy Act lock out aggrieved parties from the court system and although the doctrine of finality applies to criminal cases, the judiciary being independent of the executive should be free to intervene in reviewing decisions of the executive whenever necessary. It was the position of Counsel that this is one such instance that the court should intervene and review the President’s decision commuting the sentence.
ANALYSIS AND DETERMINATION
27. The applicant has approached this court citing the right to be heard as his basis for the application.
28. He has conceded that he has since exhausted his rights of appeal having been heard by the High Court and the Court of Appeal which had dismissed his appeal and upheld the death sentence which was later commuted to life imprisonment by the President in exercise of his power under the Powers of Mercy Act.
29. Section 23 of Power of Mercy Act 2011 provides:-
Notification of grant or denial of petition
( 1) The President shall, within sixty days of receipt of the recommendations by the Committee, consider the recommendations and either approve or reject the petition.
(2) Where the President approves or rejects a recommendation of the Committee pursuant to subsection (1), the Committee shall, in writing, notify the petitioner or their representative of the President’s decision within seven days.
(3) The Committee shall cause the approved petitions under subsection (1) to be published, in the Gazette, within twenty-one days of the receipt of the President’s decision.
(4) The decision of the President for each petition made under this section shall be final.”(emphasis added).
30. The applicant has argued that the president’s decision to commute his sentence is not immune to judicial review. Counsel argued that the president’s action is administrative and therefore amenable to judicial review thus in the applicant’s view it does not matter that the president has pronounced himself on the sentence he should serve after the courts have already pronounced themselves on the same issue. It is important to examine Section 23 of the Powers Of Mercy Act so as to establish whether the president’s decision can properly be subjected to judicial review. Section 23 (4) states that the decision of the President for each petition made under this section shall be final, the only instance when the decision may be revisited at the instance of a party is after the rejection of a petition under Section 23(1) and even then Section 24 of the Act envisages a situation where new grounds have emerged after the president has rejected a petition. In the instant case the applicant’s petition was not rejected but approved and the president acting upon the recommendation of the committee established under the Act commuted the applicant’s sentence to life imprisonment.
31. Further, a re-petition can only be done once to the president through the committee for a reconsideration of the petition by the president.
32. This application therefore raises an important question as to whether the High court after the court of appeal has pronounced itself on the matter of sentence revisit the issue.
33. In Muruatetu & another v Republic; Katiba Institute & 5 others (Amicus Curiae) (Petition 15 & 16 of 2015) [2021] KESC 31 (KLR) (6 July 2021) (Directions) the Supreme Court held that “all offenders who have been subject to the mandatory death penalty and desire to be heard on sentence will be entitled to re-sentence hearing. Where an appeal is pending before the Court of Appeal the High court will entertain an application for resentencing upon being satisfied that the appeal had been withdrawn”
34. The supreme court in issuing its directions on the issue of re-sentence did not extend its directions to cover the new ground raised by the applicant in this matter. It is worth highlighting in this ruling that the applicant has already his right of appeal and his death sentence has since been commuted by the president, therefore, the applicant is not serving a mandatory death sentence to bring him within the purview of the Muruatetu guidelines. To entertain the present application would be to compound a problem that the Supreme Court sought to alleviate in the guidelines issued in the Muruatetu case. The Supreme Court specifically stated: “ The course that courts below the Supreme Court had taken had resulted in incertitude and incoherence in the sentencing framework in Kenya and it had given rise to an avalanche of applications for re-sentencing. Sentences that were confirmed at the High Court and the Court of Appeal, had been returned to the Magistrate's Courts by appellants and they had been revised. Magistrate's courts had entertained such applications for re-sentencing without jurisdiction. Additionally, some appellants whose appeals under various statutes prescribing mandatory or minimum sentences, that were pending hearing and determination, either in the High Court or the Court of Appeal, had also had their sentences revised by the Magistrate’s Courts without disclosing the fact that pending appeals existed in superior courts.’’
35. A person against whom the Court of Appeal has made a final pronouncement on the nature of sentence he should serve has only one recourse under Article 133 of the Constitution that is to petition the president to exercise any of the powers conferred upon him under the Constitution.
36. The Article provides;-
Power of mercy.
133. (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 added)
(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.
37. The President therefore acts after the court has determined the matter with finality and thus strictly speaking the court is deemed to be functus officio on the matter of sentence by the time the president exercises his authority under the Constitution. However, the decision of the president in the exercise of the constitutional power under Article 133 as well as his power under the Power of Mercy Act can only be subjected to judicial review on grounds of procedural fairness and fair administrative action under Article 47 of the Constitution and the principles set out in Associated Provincial Picture Houses Ltd Vs Wednesbury Corporation (1948) 1 KB 223 if the decision of the president is to be so unreasonable that no reasonable person acting reasonably could have arrived at it then the decision may be reviewed by the court.
38. The applicant in this case has not demonstrated the breach of any of the rules of natural justice, procedural unfairness, irrationality, unreasonableness, illegality, impropriety or the lack proportionality in the decision by the president. The applicant has therefore any of the tests that would clothe this court with jurisdiction to review the president’s decision commuting his death sentence to life imprisonment. The argument that other courts exercising concurrent jurisdiction have intervened in the manner proposed by the applicant does not find favor with this court.
39. In this court’s view to re-open the issue of sentence after the Court of Appeal has pronounced itself on the matter, and the president in exercise of his powers under Article 133 of the Constitution, would open a flood gate of applications by other inmates who may have also benefited from the presidential decree commuting sentences thus ushering an unprecedent chaos in the sentencing regime in this country.
40. It is the view of this court that the provisions of Section 23 (4) of the Power Of Mercy Act should be given strict interpretation to bring finality to the matter of sentence and only allow courts to intervene only in instances where there is breach of Article 47 of the constitution and in those cases where a party demonstrates the existence of any of the known grounds of judicial review. To do otherwise would be to assume jurisdiction where none exists contrary to the express directions of the Supreme in the Muruatetu case relied on by the applicant.
41. In Owners of Motor Vessel Lillian “S” Vs Caltex Oil (K) Ltd (Civil Appeal 50 of 1989) [1989] KECA 48 (KLR) the Court of Appeal held that jurisdiction is everything and without it a court must down its tools.
42. This court finds that it has no jurisdiction to entertain the instant application since life imprisonment is a lawful and constitutional sentence thus the applicant should continue serving the same.
43. The application is dismissed.
44. It is so ordered.
INTRODUCTION
1. The applicant in this matter is currently serving a life sentence following the president’s decision to commute death sentences 21 st November 2022 vide gazette notice No.9566 of 19 th July 2023.
2. the applicant dissatisfied with the life sentence has approached this court by way of a notice of motion dated 25the October 2024 expressed to be brought under Article 165(6) of the Constitution 2010 Rule 21 of the Practice directions and stabilization of practice and procedure the High Court Rules 2021.
APPLICANT’S CASE
3. The applicant seeks the following ORDERS:
a). That the Honourable Court be pleased to certify this matter urgent.
b). That the Honourable Court be pleased to grant a mitigation and
resentencing hearing.
4. The application is based on the following grounds: -
a. THAT the applicant was charged before the High Court at Milimani vide Criminal Case No. 97 OF 2006 with the offence of Murder Contrary to Section 203 as read with 204 of the Penal code.
b. THAT the applicant was then tried, and sentenced to Death on 1st April 2014.
c. THAT the Applicant then subsequently Filed an appeal before the Court of Appeal at Nairobi vide Criminal Appeal No. 178 OF 2016 which was dismissed on 8th February 2019.
d. THAT the Applicant having exhausted all avenues of appeal hereby
moves this Court for a mitigation and Resentencing in accordance with
the Supreme Court Ruling in Muruatetu 2 where the court ordered that
Murder Convicts are at liberty to petition their trial Court for mitigation
and Resentencing.
e. THAT the Applicant has been in prison since date of arrest in 2006.
f. THAT the applicant has gone through various Rehabilitative programs
while in prison.
g). THAT the Applicant prays that this Hon. Court to review his sentence
to a lenient sentence putting into account that he has been in prison
since 2006 in accordance to Section 333 (2) of the Criminal Procedure
Code.
h. THAT the Applicant prays that the remaining sentence (if any) be
ordered that he serve under community service (probation)
5. The application is supported by the affidavit JOSEPH KINYURU KIRIMBI the applicant who deposes that he is a male adult of sound mind and an inmate convicted of Murder Contrary to Section 203 as read with 204 of the Penal code and sentenced to serve Life imprisonment a term he is currently serving at Kamiti Maximum Security Prison.
6. THAT he was charged before the High Court at Milimani vide Criminal Case No. 97 OF 2006 with the offence of Murder Contrary to Section 203 as read with 204 of the Penal code.
7. THAT he was then tried, and sentenced to Death on 1st April 2014.
8. THAT he filed an appeal before the Court of Appeal at Nairobi vide Criminal Appeal No. 178 OF 2016 which was dismissed on 8th February 2019.
9. The applicant deposed that having exhausted all avenues of appeal, he now moves this Court for a mitigation and Resentencing in accordance with the Supreme Court Ruling in Muruatetu 2 where the court ordered that Murder Convicts are at liberty to petition their trial Court for mitigation and Resentencing.
10. He further deposed that he has been in prison since date of arrest in 2006.
11. The applicant further asserted that he has under gone various Rehabilitative programs while in prison.
12. The applicant further urged this court to review his sentence to a lenient sentence putting into account that he has been in prison since 2006 in accordance to Section 333 (2) of the Criminal Procedure Code.
13. He went on to urge the court to consider ordering that the remaining sentence (if any) be ordered to be served under community service (probation).
14. The applicant was represented at the hearing of this application by Ms Ngángá Advocate who adopted the application as filed by the applicant and argued that this court has the jurisdiction to hear and determine the application notwithstanding the fact that the applicant has exhausted his right of appeal and is currently serving a life sentence rising from a decision of the committee on prerogative on mercy which was endorsed by the president. Counsel relied on Article 163 (3) (v) and Article 50 (2) (p) and (q).
15. Counsel for the applicant argued that although the applicant’s death sentence had been commuted on 24 th October 2016 the same was not raised before the Court of Appeal and hence the decision by the Court of Appeal upholding the death sentence. Counsel further submitted that the applicant was a beneficiary of the president’s order committing death sentences in 2022 thus the applicant is currently serving a life imprisonment.
16. Ms Ngángá argued that although life sentence is legal and constitutional this court has the power to review the same and grant a determinate sentence. Counsel urged the court to consider the case of Biwott Vs Republic Petition No. 23 of 2018 (2023) Eklr where the applicant having lost his appeal before the Court of Appeal he went to the High Court and his sentence was reviewed to 45 years.
17. Counsel further informed this court that in the Biwott case he had been charged together with a co-accused by the name Jebet who filed Criminal Petition No. E307 of 2023 which was heard and determined by the Hon. Lady Justice Ominde who similarly sentenced Jebet to a period of 45 years.
18. The applicant further submitted that one Daniel Njoroge Kimotho who was his co- accused in the initial matter approached this court vide Miscellaneous Criminal Application No. E269 of 2024 which was heard before Mwamuye J, and was resentenced to 23 years.
19. On the strength of those decisions, the applicant’s counsel urged this court to consider reviewing his client’s sentence arguing the president’s decision to commute sentence is administrative and therefore capable of review by this court.
20. The applicant anchored his application on the right to be heard noting that the Supreme Court in determining the Muruatetu Case did not pronounce itself on the presidential power to commute sentences thus it was necessary for this court to pronounce itself on the matter.
21. Counsel further submitted that the issue of the exercise of the presidential power to commute sentences was not canvassed before Hon. Justice Mwamuye.
RESPONDENT’S CASE
22. Ms Ogega Prosecution Counsel opposed the application citing the provisions of Section 23 of the Powers of Mercy Act. In her submission, Ms Ogega maintained that the president’s power to commute sentence is final and can only be revisited upon the emergence of new grounds as envisaged under Section 24 of the Act. Counsel argued that if for instance a president was to release anyone under the Act through presidential pardon the Director of Public Prosecutions has no power to move the High Court seeking a reversal of the decision of the president.
23. The prosecution counsel further urged the court to consider that since the president had commuted the sentence to life imprisonment and the Supreme Court in Julius Kitsao Manyeso Vs Republic (Petition E013 od 2024) [2025] KESC 16 (KLR)(11 April 2025) (Judgment) had found that life sentence is lawful there was no justification at all for this court to intervene and further review the sentence.
24. According to Ms Ogega, the court should apply strict interpretation of Section 23 of the Power of Mercy Act and find the decision of the president to be final and unassailable. Counsel for the prosecution urged the court to decline jurisdiction since the last court to have dealt with the issue of the sentence was the court of Appeal, thus the proper court for the applicant to have returned to, if at all he were to, would have been the court of Appeal and not this court.
25. Further, Ms Ogega argued that the decision by the Hon. Justice Mwamuye being a decision of a court of concurrent jurisdiction does not bind this court and therefore this court should not be inclined to follow it.
26. Ms Ngángá responded arguing that the provisions of Sections 23 and 24 of the Powers of Mercy Act lock out aggrieved parties from the court system and although the doctrine of finality applies to criminal cases, the judiciary being independent of the executive should be free to intervene in reviewing decisions of the executive whenever necessary. It was the position of Counsel that this is one such instance that the court should intervene and review the President’s decision commuting the sentence.
ANALYSIS AND DETERMINATION
27. The applicant has approached this court citing the right to be heard as his basis for the application.
28. He has conceded that he has since exhausted his rights of appeal having been heard by the High Court and the Court of Appeal which had dismissed his appeal and upheld the death sentence which was later commuted to life imprisonment by the President in exercise of his power under the Powers of Mercy Act.
29. Section 23 of Power of Mercy Act 2011 provides:-
Notification of grant or denial of petition
( 1) The President shall, within sixty days of receipt of the recommendations by the Committee, consider the recommendations and either approve or reject the petition.
(2) Where the President approves or rejects a recommendation of the Committee pursuant to subsection (1), the Committee shall, in writing, notify the petitioner or their representative of the President’s decision within seven days.
(3) The Committee shall cause the approved petitions under subsection (1) to be published, in the Gazette, within twenty-one days of the receipt of the President’s decision.
(4) The decision of the President for each petition made under this section shall be final.”(emphasis added).
30. The applicant has argued that the president’s decision to commute his sentence is not immune to judicial review. Counsel argued that the president’s action is administrative and therefore amenable to judicial review thus in the applicant’s view it does not matter that the president has pronounced himself on the sentence he should serve after the courts have already pronounced themselves on the same issue. It is important to examine Section 23 of the Powers Of Mercy Act so as to establish whether the president’s decision can properly be subjected to judicial review. Section 23 (4) states that the decision of the President for each petition made under this section shall be final, the only instance when the decision may be revisited at the instance of a party is after the rejection of a petition under Section 23(1) and even then Section 24 of the Act envisages a situation where new grounds have emerged after the president has rejected a petition. In the instant case the applicant’s petition was not rejected but approved and the president acting upon the recommendation of the committee established under the Act commuted the applicant’s sentence to life imprisonment.
31. Further, a re-petition can only be done once to the president through the committee for a reconsideration of the petition by the president.
32. This application therefore raises an important question as to whether the High court after the court of appeal has pronounced itself on the matter of sentence revisit the issue.
33. In Muruatetu & another v Republic; Katiba Institute & 5 others (Amicus Curiae) (Petition 15 & 16 of 2015) [2021] KESC 31 (KLR) (6 July 2021) (Directions) the Supreme Court held that “all offenders who have been subject to the mandatory death penalty and desire to be heard on sentence will be entitled to re-sentence hearing. Where an appeal is pending before the Court of Appeal the High court will entertain an application for resentencing upon being satisfied that the appeal had been withdrawn”
34. The supreme court in issuing its directions on the issue of re-sentence did not extend its directions to cover the new ground raised by the applicant in this matter. It is worth highlighting in this ruling that the applicant has already his right of appeal and his death sentence has since been commuted by the president, therefore, the applicant is not serving a mandatory death sentence to bring him within the purview of the Muruatetu guidelines. To entertain the present application would be to compound a problem that the Supreme Court sought to alleviate in the guidelines issued in the Muruatetu case. The Supreme Court specifically stated: “ The course that courts below the Supreme Court had taken had resulted in incertitude and incoherence in the sentencing framework in Kenya and it had given rise to an avalanche of applications for re-sentencing. Sentences that were confirmed at the High Court and the Court of Appeal, had been returned to the Magistrate's Courts by appellants and they had been revised. Magistrate's courts had entertained such applications for re-sentencing without jurisdiction. Additionally, some appellants whose appeals under various statutes prescribing mandatory or minimum sentences, that were pending hearing and determination, either in the High Court or the Court of Appeal, had also had their sentences revised by the Magistrate’s Courts without disclosing the fact that pending appeals existed in superior courts.’’
35. A person against whom the Court of Appeal has made a final pronouncement on the nature of sentence he should serve has only one recourse under Article 133 of the Constitution that is to petition the president to exercise any of the powers conferred upon him under the Constitution.
36. The Article provides;-
Power of mercy.
133. (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 added)
(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.
37. The President therefore acts after the court has determined the matter with finality and thus strictly speaking the court is deemed to be functus officio on the matter of sentence by the time the president exercises his authority under the Constitution. However, the decision of the president in the exercise of the constitutional power under Article 133 as well as his power under the Power of Mercy Act can only be subjected to judicial review on grounds of procedural fairness and fair administrative action under Article 47 of the Constitution and the principles set out in Associated Provincial Picture Houses Ltd Vs Wednesbury Corporation (1948) 1 KB 223 if the decision of the president is to be so unreasonable that no reasonable person acting reasonably could have arrived at it then the decision may be reviewed by the court.
38. The applicant in this case has not demonstrated the breach of any of the rules of natural justice, procedural unfairness, irrationality, unreasonableness, illegality, impropriety or the lack proportionality in the decision by the president. The applicant has therefore any of the tests that would clothe this court with jurisdiction to review the president’s decision commuting his death sentence to life imprisonment. The argument that other courts exercising concurrent jurisdiction have intervened in the manner proposed by the applicant does not find favor with this court.
39. In this court’s view to re-open the issue of sentence after the Court of Appeal has pronounced itself on the matter, and the president in exercise of his powers under Article 133 of the Constitution, would open a flood gate of applications by other inmates who may have also benefited from the presidential decree commuting sentences thus ushering an unprecedent chaos in the sentencing regime in this country.
40. It is the view of this court that the provisions of Section 23 (4) of the Power Of Mercy Act should be given strict interpretation to bring finality to the matter of sentence and only allow courts to intervene only in instances where there is breach of Article 47 of the constitution and in those cases where a party demonstrates the existence of any of the known grounds of judicial review. To do otherwise would be to assume jurisdiction where none exists contrary to the express directions of the Supreme in the Muruatetu case relied on by the applicant.
41. In Owners of Motor Vessel Lillian “S” Vs Caltex Oil (K) Ltd (Civil Appeal 50 of 1989) [1989] KECA 48 (KLR) the Court of Appeal held that jurisdiction is everything and without it a court must down its tools.
42. This court finds that it has no jurisdiction to entertain the instant application since life imprisonment is a lawful and constitutional sentence thus the applicant should continue serving the same.
43. The application is dismissed.
44. It is so ordered.