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JudgmentJULIANA NJUKI MUGUNA VS The Republic7 min read

JULIANA NJUKI MUGUNA VS The Republic

High Court at Embu High Court · · Lucy Njuguna


  1. The applicant has filed an undated notice of motion seeking sentence review in Siakago MCCR No. 1817 of 2006 where he was sentenced to death having been found guilty of the offence of robbery with violence. He filed the application on the basis of infringement of his right under the constitution and in line with the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013.
  2. Following his conviction at the trial court, the applicant filed a first appeal being Embu HCCRA no. 116 of 2008 and a second appeal being Nyeri COACRA No. 19 & 26 of 2010 which were both dismissed. In this application, he deposes that this court has jurisdiction under article 165(3)(b) of the Constitution and section 364 of the Criminal Procedure Code to review the sentence imposed by the trial court. He urged the court to grant him a lenient sentence as provided for under Article 50(2)(p)&(q) of the Constitution and consider the provisions of section 333(2) of the Criminal Procedure Code.
  3. The application was opposed through grounds of opposition in which the respondent stated that the factors put forward by the applicant do not constitute grounds for revision of the sentence as provided for under section 362 of the Criminal Procedure Code. It urged the court to dismiss the application as it amounts to an abuse of the court process.
  4. The revision herein was canvassed by way of written submissions.
  5. In his submissions, the applicant stated that this court bears jurisdiction to determine this application and he relied on the cases of Owners of The Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd (Civil Appeal 50 of 1989) [1989] KECA 48 (KLR) and Samuel Kamau Macharia & Another v. Kenya. Commercial Bank & 2 Others, SC Application No. 2 of 2011; (2012) eKLR. He also relied on Article 165 of the Constitution which established the jurisdiction of the High Court. He argued that his rights under Articles 3(a), 19(2), 20(1), 22(1), 23(1), 25(c), 26(1), 27(1&4), 28, 50(2)(p&q) of the Constitution were infringed by the upholding of the death sentence meted out to him. He relied on the cases of Gechu v Republic [2024] KEHC 749 (KLR) and William Okungu Kitinny v. Republic (2018) eKLR and decried the mandatory nature of the death sentence prescribed under section 296(2) of the Penal Code. He relied on the cases of Muruatetu & another v Republic; Katiba Institute & 5 others (Amicus Curiae) [2017] KESC 2 (KLR) (‘Muruatetu 1’) and Manyeso v Republic [2023] KECA 827 (KLR) and argued that mandatory sentences take away the trial court’s discretion to consider mitigation during sentencing. He urged the court to consider the factors laid down by the court in Muruatetu 1 during resentencing. He stated that he was 26 years old at the time of the offence and he has been in custody for 18 years during which time he has reflected on his life and he has reformed. That he seeks that the time spent in custody before the trial be considered in reviewing his sentence.
  6. The respondent submitted that the application does not meet the threshold for revision under section 362 of the Criminal Procedure Code. That the trial court sentenced him under section 296(2) of the Penal Code and imposed the legally prescribed sentence. That principles laid down in Muruatetu 1 do not apply to robbery with violence and the Supreme Court clarified this position.
  7. From the foregoing, the issue for determination is whether this court has the power to review the sentence meted out to the appellant.
  8. The applicant has moved this court to reconsider the death sentence meted out to him by the trial court. He has alleged that his constitutional rights have been infringed as detailed in the application and the written submissions. On its face, the application seeks both revision under section 362 of the Criminal Procedure Code and resentencing in light of infringement of constitutional rights, thus, he states that the application is filed under Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013. Overall, he is seeking that the sentence be reconsidered.
  9. Where a question of law arises that can be determined without touching on the constitution, the court is obligated to avoid the constitutional issue, which should be determined independently through a constitutional petition. In the same way, where a constitutional issue, particularly touching on infringement of rights is raised, it should take precedence and be determined regardless of the form of the complaint, as provided under Rule 10 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013.
  10. The appellant has decried infringement of his rights under Articles 3(a), 19(2), 20(1), 22(1), 23(1), 25(c), 26(1), 27(1&4), 28, 50(2)(p&q) of the Constitution. He also stated that the trial court was not able to consider his mitigation at the time because either way, the penalty for the offence was already defined in mandatory terms. This means that it did not matter what the applicant said in mitigation, the death sentence was already cut out for him after conviction. In the case of Muruatetu & another v Republic; Katiba Institute & 5 others (Amicus Curiae) [2017] KESC 2 (KLR) (‘Muruatetu 1’), the Supreme court stated that the flaw with mandatory sentences prescribed in law is that it fetters the discretion of the courts during sentencing. A trial court can exercise discretion through hearing mitigating and aggravating factors thus reduce or enhance a sentence (as the case may be) prescribed in law. This is not possible in the case of mandatory sentences.
  11. The Supreme Court, however warned that its decision therein only applied to murder cases and not any other offences. In  its directions issued in Muruatetu & another v Republic; Katiba Institute & 4 others (Amicus Curiae) [2021] KESC 31 (KLR) (directions), the Supreme Court stated:

“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 fled, 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.”

  1. In line with this, according to Paragraph 2.2.6 of the Judiciary Sentencing Policy Guidelines 2023, the death penalty is still applicable in other cases besides murder cases. It provides:

“Following Muruatetu II, the mandatory nature of the death penalty is still applicable to other capital offences, except murder.”

  1. The position of the Court of appeal in Manyeso v Republic [2023] KECA 827 (KLR) was recently displaced by the Supreme Court in the case of Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) [2024] KESC 34 (KLR) where it firmly held that:

“We must also reaffirm that, although sentencing is an exercise of judicial discretion, it is Parliament and not the Judiciary that sets the parameters of sentencing for each crime in statute. As such, striking down a sentence provided for in Statute, must be based not only on evidence and sound legal principles but on an in-depth consideration of public interest and the principles of public law that informed the making of that specific law. A judicial decision of that nature cannot be based on private opinions, sentiments, sympathy or benevolence. It ought not to be arbitrary, whimsical or capricious. However, where a sentence is set in Statute, the Legislature has already determined the course, unless it is declared unconstitutional, based on sound principles and clear guidelines, upon which the Legislature should then act. Suffice to say, where Parliament enacts legislation, the Judicial arm should adjudicate disputes based on the provisions of the law. However, in the special circumstances of a declaration of unconstitutionality, the process is reversed.”

  1. With this in mind, there is very little the court can do as regards resentencing in the context of the death penalty meted out to the applicant upon conviction for the offence of robbery with violence. Articles 3 speaks of the supremacy of the constitution, while Articles 19(2), 20(1), 22(1), 23(1), 25(c), 26(1), 27(1&4) and 28 provide for human rights and fundamental freedoms. Article 50(2)(p&q) provide that an accused person is to benefit from the least severe punishment and is eligible for sentence review by a higher court within the confines of the law.
  2. In the eyes of the law as it stands now, there is no basis for reviewing the sentence. The court is guided by stare decisis and the supreme court’s position on this matter binds this court. With the rapid growth of jurisprudence and hopefully, written law on the subject of resentencing in robbery with violence cases, the court may be able to consider an application such as this, with a different view.
  3. At this time, the application lacks merit and it is hereby struck out.
  4. It is so ordered.

Delivered, dated and signed at Embu this 4th day of December, 2024.


    JULIANA NJUKI MUGUNA VS The Republic JULIANA NJUKI MUGUNA VS The Republic