Background
1. He Petitioner in this case Maxwel Lubuya Esese was initially charged jointly with Wycliffe Ludenyo Aika and Wyciffe Imbuga Onyango before the SPM at Vihiga in CR. Case No. 1006 of 2013 with the principal count of robbery with violence contrary to Section 295 as read with Section 296(2) of the Penal Code. The particulars of the offence being that on the 30th day of September 2013 at 9.30pm at Chamasilihi Village, Mbale Sub Location, Izava North Location in Vihiga County, jointly with others not before Court while armed with offensive weapons namely pangas and rungus robbed off Lucy Nyaleso Mole six handbags, one mobile phone make Nokia 1280 and cash Kshs.2,000/= all valued at Kshs.11,000/=, the property of Lucy Nyaleso Mole and at the time of such robbery threatened to use actual violence to the said Lucy Nyaleso Mole.
2. In the alternative count, the 1st accused person was charged with handling stolen property contrary to Section 322(1) as read with Section 322(2) of the Penal Code. The particulars of the offence being that on the 30th day of September 2013 at 9.30pm at Chamasilihi Village, Mbale Sub Location, Izava North Location in Vihiga County, otherwise than in the course of stealing, dishonestly/retained six handbags knowing or having reasons to believe them to be stolen goods. In count II, all the accused persons were charged with assault causing actual bodily harm contrary to Section 251 of the Penal Code. The particulars of the offence being that on the 30th day of September 2013 at 9.30pm at Chamasilihi Village, Mbale Sub Location, Izava North Location in Vihiga County, jointly with others not before the Court unlawfully assaulted Josphat Kinavode thereby occasioning him actual bodily harm.
3. Following the finding of guilty and conviction by the learned trial Magistrate she proceeded to impose sentence couched in the following language:
In view of the clear provisions of the Section 296(2) of the Penal Code on mandatory death sentence on conviction for the offence and the confirmation by the bench of five in the Court if Appeal case of Joseph Njuguna Mwaura & 2 Others vs R, I hereby sentence the accused persons to death for the offence of robbery with violence. Right of appeal is 14 days.
4. This conviction and sentence became a subject of an appeal before the High Court in Criminal Appeal Case No. 79 of 2016 in which the session Judge made the following findings and decreed as follows:
33. In the instant case, Ludenyo was apprehended as he tried to flee from the sugar cane plantation when he fell into a ditch. According to Josephat and Vincent, two other people escaped, but soon after Ludenyo’s arrest, Maxwell and Imbuga were arrested some 6 metres away hiding near the fence. Upon arrest, they could not explain why they were in that place at the material time. Some 6 metres away from the scene, the police recovered 6 handbags, which handbags were positively identified by both Josephat and Lucy as the bags that had been stolen from their house that same night at around 9.00pm. The 6 handbags were produced as PExhibit 4. It is noteworthy that the arrests took place within a very short time after the robbery.
34. In summary, I am satisfied that the doctrine of recent possession is applicable in this case. The handbags were found in the very same place where Ludenyo was arrested, and just a short distance away from where Maxwell and Imbuga were found hiding. Though the handbags were not found in the hand of any of the three appellants, the fact that the handbags were found within the vicinity of the area where the three appellants were arrested confirmed the evidence that there had infact been three people at the scene before two of them ran ahead of Ludenyo. This is a confirmation that he three appellants were in possession of the 6 handbags
35. The appellants stated separately that they had simply rushed out in response to the screams they heard, but in my considered view that story was made up by each one of them as they awaited trial. The truth of the matter is that they were all out there in that place as they were trying to evade arrest after committing the robbery.
36. In conclusion and for the reasons above stated, I find no merit in the appellant’s appeals. The same be and are hereby dismissed on both conviction and sentence. Right of appeal within 14 days. It is so ordered
5. It is on record that the matter did not stop there, the Convicts proceeded to the Court of Appeal in Criminal Appeal No. 12 of 2018 and apparently the same issues before the High Court were canvassed and the Appeal’s Court dismissed the appeal of Wycliffe Ludenyo Aika on both conviction and sentence. It goes without saying that if Maxwell and Wycliffe Imbunga Onyango were also in the same bench that decision applies to each one of them mutatis mutandis. This Court is privy to an application filed before Kamau J as she then was the PJ of Vihiga High Court in which the main Actor or Applicant was Wycliffe Ludenyo Aika in which he had pleaded the 13 grounds for the Court’s considerations. The Court having considered all the justiciable issues ruled as follows:
17. having considered the facts of this case, the Applicant’s mitigation, the Prosecution’s response thereto, the pre-sentence report, the Recommendation Letter by Timothy Tirunya ASP for the Officer in-charge Naivasha Maximum Prison dated 16th December 2025, and the Applicant's Certificates of completion on various rehabilitation programs, this Court came to the firm conclusion that a reduction of his death sentence to a sentence of thirty (30) years imprisonment would be reasonable in the circumstances of this case.
18.As the Applicant's sentence was now determinate, this Court was mandated to consider the period that he spent in remand while his trial was on going in line with Section 333(2) of the Criminal Procedure Code Cap 75 (Laws of Kenya).
19.The said Section 333(2) of the Criminal Procedure Code provides that:-“Subject to the provisions of Section 38 of the Penal Code (cap 63) every sentence shall be deemed to commence from, and to include the whole of the day of, the date on which it was pronounced, except where otherwise provided in this Code Provided that where the person sentenced under subsection (1)has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody” (emphasis Court).
20.Further, Clause 4.6.20 (ix) of the Judiciary Sentencing Policy Guidelines provides that:-"The Sentencing Court shall be guided by the sentencing principles and objectives set out in Part I of these the Guidelines in all resentencing hearings. The following mitigating factors were set out by the Supreme Court as particularly relevant in a resentencing hearing:...(ix) Time already spent in prison by the convict..."
21.The requirement under Section 333(2) of the Criminal Procedure
Code was restated by the Court of Appeal in Ahamad Abolfathi Mohammed & Another vs Republic [2018] eKLR.
22.A perusal of the charge sheet herein indicated that the Applicant was arrested on 30th September 2013. Although he was granted bond, he did not seem to have posted the same. He was sentenced on 24th October 2014. It was, therefore, this Court's view that that was a period that ought to be taken into account while computing his sentence.
23.Accordingly, the upshot of this Court's decision was that although the Applicant’s conviction remained undisturbed as it was safe, his sentence of death which was later commuted by Executive Order of the President of Kenya to life imprisonment be and is hereby set aside and substituted with a sentence of thirty (30) years imprisonment which is to run from the date of the sentence of the lower Court.24.For the avoidance of doubt, the period which he spent in custody from 30th September 2013 until 23rd October 2014 be and is hereby taken into account while computing his sentence in accordance with Section 333(2) of the Criminal Procedure Code Cap 75 (Laws of Kenya).
25. It is so ordered.
6. That is in so far as the Courts have been engaged by the convicts in this litigation landscape. It appears to them that justice has not been done or seem to be done by the Courts in our legal system if the c constitutional petition dated 19th day of January 2026 by Maxwell Lubuya Esese is anything to go by where he sought the following prayers:
a. A declaration that the mandatory death sentence imposed upon the Petitioner under Section 296(2) of the Penal Code is unconstitutional for violating Articles 25(c), 27(1),28 and 50(2)(p) of the Constitution of Kenya, 2010.
b. A declaration that the Petitioner is entitled to the benefit of the least severe punishment and to a sentence that respects his dignity and equality before the law.
c. An order directing that the Petitioner be presented before the Vihiga Law Courts or any other competent sentencing Court for sentence re-hearing and re-sentencing, upon consideration of mitigation and in accordance with the Judiciary Sentencing Guidelines
d. An order that Sections 216,329 and 333(2) of the Criminal Procedure Code be fully applied in the Petitioner's re-sentencing.
e. Any other or further orders that this Honourable Court may deem just and expedient in the circumstances.
7. The Petitioner, Maxwel Lubuya Esese, is a convict currently held at
Naivasha Maximum Security Prison under Prison Number
NAV/776/022/LIFE. He was tried, convicted and sentenced to suffer death for the offence of robbery with violence contrary to Section 296(2) of the Penal Code, Cap 63 (Laws of Kenya). He has exhausted the ordinary appellate process. He now comes before this Court, in person, by way of a constitutional petition.
8. His complaint is a narrow but consequential one. He does not, in these proceedings, ask this Court to disturb his conviction. What he says is that the sentence of death visited upon him was not, in any meaningful sense, a judicial sentence at all. It was, he says, a legislative command that the trial Court was obliged to execute; that no mitigation was received or could have availed him. That no regard was accorded to his personal circumstances, his role in the offence, the value of the property taken, or the period he had spent in custody; and that a sentencing process so constituted cannot be reconciled with the Bill of Rights.
9. The Petition, dated 19th January 2026, is supported by the Petitioner's own Affidavit sworn on the same date. He filed Written Submissions dated 10th March 2026. He is a lay litigant and his pleadings bear the marks of that fact. The Court has, consistent with Article 48 and Article 159(2)(d) of the Constitution, read them generously and looked to their substance rather than their form.
10. The reliefs sought are, in summary: a declaration that the mandatory death sentence imposed under Section 296(2) of the Penal Code is unconstitutional; a declaration that the Petitioner is entitled to the benefit of the least severe punishment and to a sentence that respects his dignity and equality before the law; an order that he be set aside from the death sentence and presented before a competent Court for a sentence re-hearing at which mitigation is received; an order that Sections 216, 329 and 333(2) of the Criminal Procedure Code be applied; and such further relief as the Court may deem just.
THE PETITIONER'S CASE
11. He contends that this state of affairs violates: Article 25(c), the nonderogable right to a fair trial; Article 27(1), equality before the law and the right to equal protection and equal benefit of the law; Article 28, the inherent dignity of the person; Article 48, access to justice; and Article 50(1) and (2), fair hearing and the entitlement, if convicted, to appeal to or apply for review by a higher Court.
12. He relies principally on Francis Karioko Muruatetu & another v Republic (Petition 15 & 16 of 2015) [2017] KESC 2 (KLR) ("Muruatetu I"); on the Directions of the Supreme Court in Muruatetu & Another v Republic; Katiba Institute & 5 others (Amicus Curiae) (Petition 15 & 16 of 2015) [2021] KESC 31 (KLR) ("Muruatetu II"); on Ramadhan & 8 Others v General & Another (Petition 5 of 2022 & Constitutional Petition 6 of 2022 (Consolidated)) [2024] KEHC 1173 (KLR); and on the decision of this very Court in Mbugua & 9 others v Attorney General & 3 Others
(Constitutional Petition E002 & E003 of 2024 (Consolidated)) [2025] KEHC 1248 (KLR) (24th February 2025).
13. He further invokes comparative and international authority: Reyes v The Queen [2002] 2 AC 235 (Privy Council, Belize), for the proposition that a mandatory death sentence treats an offender as a faceless member of a class rather than as an individual human being; Rattiram v State of Madhya Pradesh (Supreme Court of India), for the proposition that the denial of fair trial safeguards vitiates the criminal process; and Baptiste v Bahamas (Inter-American Commission on Human Rights), for the proposition that automatic capital punishment is arbitrary and disproportionate. He also relies on the ambiguity said to attend Sections 295, 296 and 297 of the Penal Code, referring the Court to Kaberia Kahinga & others v Republic, and on the audi alteram partem rule.
14. On jurisdiction, he relies on Articles 22, 23(1) and 165(3)(b) of the
Constitution; on Owners of Motor Vessel "Lilian S" v Caltex Oil (Kenya) Ltd [1989] KLR 1; on Samuel Kamau Macharia & another v Kenya Commercial Bank Ltd & 2 others [2012] eKLR; and on Protus Buliba Shikuku v Attorney General for the proposition that constitutional jurisdiction is distinct from appellate jurisdiction and remains available even after the conclusion of criminal appeals where the complaint is one of violation of constitutional rights.
15. In his mitigation, placed before this Court in his submissions and affidavit, the Petitioner states that he has been in custody for approximately thirteen years; that he entered prison as a young and unformed man; that he has maintained a clean disciplinary record; that he has undertaken counselling and guidance in anger management, conflict resolution and responsible living; that he has pursued education and vocational training; that he is remorseful and wishes to apologize to the complainant and to society; that his family stands ready to receive him; and that he undertakes never again to come into conflict with the law.
16. He is aged 43 years. He points out that life expectancy for males in Kenya is approximately 64.4 years, and submits that his continued detention under an unreviewable death sentence condemns him to die in custody without any individualized judicial consideration ever having been given to his case.
THE RESPONDENT'S CASE
17. The Respondent was served but did not file a replying affidavit, grounds of opposition or written submissions, and did not appear at the hearing. The Petition is therefore, in the technical sense, unopposed.
18. That does not relieve the Petitioner of his burden. A constitutional petition is not granted by default. Where the reliefs sought include a declaration touching upon the validity of an Act of Parliament, the Court must be satisfied on the law and on the record that the claim is made out, and must be astute not to grant, by inadvertence or by concession, relief that ought properly to be refused. I have accordingly examined the Petition on its merits and have, of my own motion, considered the arguments that would have been available to the Respondent had it appeared. Chief among these are: the Directions in Muruatetu II; the Supreme Court's decisions in Republic v Mwangi; Initiative for Strategic
Litigation in Africa (ISLA) & 3 others (Amicus Curiae) (Petition E018 of
2023) [2024] KESC 34 (KLR) and Republic v Manyeso (Petition E013 of 2024) [2025] KESC 16 (KLR); the line of Court of Appeal authority holding that the death sentence under Section 296(2) remains a lawful sentence; and the objections of res judicata and of the Court being asked to sit on appeal against a decision of the Court of Appeal.
PRELIMINARY OBSERVATIONS ON THE RECORD
19. Before turning to the issues, four matters on the record require comment.
20. First, the non-joinder of the Attorney-General. The Petition names only the Director of Public Prosecutions as Respondent. Yet prayer (a) invites the Court to declare a provision of the Penal Code unconstitutional. Under Article 156(4)(b) of the Constitution, the Attorney-General represents the national government in Court proceedings, and it is the Attorney-General who is ordinarily the proper party to defend the constitutionality of a Statute. Rule 5(d) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 provides that a petition shall not be defeated by reason only of the misjoinder or non-joinder of parties, and I decline to strike out the Petition on that ground. The non-joinder is, however, of considerable significance when I come to consider the scope of the relief that this Court can properly grant, and I return to it at paragraphs 67 to 72 below.
21. Second, the precision of the pleading. Anarita Karimi Njeru v Republic
[1979] eKLR, as affirmed in Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others [2013] eKLR, requires a Petitioner to set out with reasonable precision the right infringed, the manner of infringement, and the relief sought. The Petition here, though drawn by a lay person, meets that threshold. The impugned provision is identified, the constitutional articles are enumerated, the manner of infringement (the foreclosure of mitigation and of judicial discretion at sentencing) is plainly stated, and the reliefs are specific.
22. Third, certain errors and inconsistencies. The Petition states that the first appeal was dismissed on the "18th day of 2017"; the Written Submissions supply the omission — 18th December 2017 — and I proceed on that basis. The Written Submissions refer in one place to thirteen years in custody and in another to eighteen years; on the face of the record the Petitioner has been in custody since, at latest, 24th October 2014, and in all probability since shortly after 20th September 2013. He has therefore served approximately twelve years. The exact date of his arrest does not appear on the record before me and will have to be established from the trial Court file at the re-sentencing, a matter of some importance for the purposes of Section 333(2) of the Criminal Procedure Code. The Petitioner's affidavit refers to "my advocates on record" although he appears in person; nothing turns on this. The quotation from Ramadhan refers to "Section 279(2)" of the Penal Code; that is plainly a typographical error for Section 297(2).
23. Fourth, the invocation of Article 50(2)(p). The Petitioner leans heavily on Article 50(2)(p), which confers "the benefit of the least severe of the prescribed punishments for an offence, if the prescribed punishment for the offence has been changed between the time that the offence was committed and the time of sentencing." Read strictly, that provision is directed at intervening statutory amendment. Section 296(2) was not amended between September 2013 and October 2014. To that extent the reliance on Article 50(2)(p), standing alone, is misconceived, and I say so plainly. But it is not the Petitioner's only, or best, foundation. The Supreme Court in Muruatetu I grounded its conclusion in Articles 25(c), 27, 28, 48 and 50(1) and (2)(q) of the Constitution, and it is upon those provisions, together with the statutory guarantees in Sections 216, 323, 329 and 333(2) of the Criminal Procedure Code, that the Petitioner's case truly rests. A lay litigant is not to be shut out because he has cited the wrong sub-paragraph of the right Article.
ISSUES FOR DETERMINATION
24. Having considered the Petition, the Supporting Affidavit and the Written Submissions, the issues that fall for determination on part predominately is:
a. Whether this Court has jurisdiction to entertain the Petition, and whether it is barred by res judicata or by the fact that the
Petitioner's appeals have been finally determined;
ANALYSIS AND DETERMINATION
Jurisdiction and res judicata
25. Jurisdiction is, as the Petitioner correctly submits on the authority of Owners of Motor Vessel "Lilian S" v Caltex Oil (Kenya) Ltd [1989] KLR 1, everything; without it a Court must down its tools. And, as the Supreme Court held in Samuel Kamau Macharia & Another v Kenya Commercial Bank Ltd & 2 Others [2012] eKLR, jurisdiction flows from the Constitution or from statute and cannot be conferred by consent or assumed by craft. The Mureithi v Republic [2025] KEHC 3519: Reaffirmed that lower or equal Courts cannot supervise, review, or overturn final decisions issued by superior or peer Courts of competent jurisdiction and in Dari Limited & 5 others v Supreme Court of Kenya [2025] KEHC 8545: Highlighted that the High Court lacks the jurisdictional footprint to entertain suits challenging or reviewing decisions or the conduct of the Supreme Court of Kenya.
26. There is no dispute that this criminal case has been litigated from the primary Court vested with jurisdiction under Article 50(1) of the Constitution together with the corresponding Statutes governing the Subordinate Court jurisdiction distribution within their ranks. The Convicts tested the efficacy and efficiency of our Courts all the way to the Court of Appeal in Criminal Appeal Case No. 12 of 2018 which appeal arose from the decision of the High Court on the same subject matter in HCCRA No. 79 of 2016. Essentially this is a concurrent holder of jurisdiction in the same strength and powers like the session Judge in HCCRA No. 79 of 2016.
27. It is acknowledged that the width and breadth of the High Court jurisdiction is premised under Articles 239(1) and 165(3) of the Constitution to address violation, infringement and/or a threat to a right or fundamental freedom. Thus:
“38. Article 165(3) of the constitution confers on this Court with very wide jurisdiction to deal with any matter that falls within its jurisdiction. That jurisdiction is not exhaustive given that Article 165(3) (e) states that the Court can have any other jurisdiction, original or appellate, conferred on it by legislation. In terms of Article 165(3) (d) (ii), the Court has jurisdiction to determine the question whether anything said to be done under the authority of this Constitution or of any law is inconsistent with, or in contravention of, the constitution. Article 23(1) also states that the Court has jurisdiction to hear and determine applications for redress of denial, violation or infringement of or threat to a right or fundamental freedom in the Bill of Rights. This jurisdiction is to be exercised in accordance with Article 165 of the Constitution. Article 23(3) of the constitution undoubtedly confirms the extent of the width of the jurisdiction of this Court to grant appropriate relief.”
28. What should be borne in mind is whether this Court is competent and properly constituted to entertain the subject matter within its constitutional mandate as outlined above. The issue of jurisdiction forms the bedrock of the proceedings initiated by the petition. It is the jurisdiction that gives the authority and competence to the High Court to entertain all those issues being canvassed by the petition. As stated above in the cited authorities all the way to the Supreme Court it has been recognized and settled that jurisdiction is fundamental and crucial to any dispute adjudication and if jurisdiction is lacking any proceedings that are conducted or entertain would be a nullity however well conducted by the session Judge. Just borrow a leaf from the comparative law jurisdiction, the Court in GTB v. Toyed (Nig) Ltd & Anor (2016) LPELR-4181 (CA) observed:
The law is well settled and it no longer admits of any argument that jurisdiction is the very basis and the life wire of every matter and on which any Court tries or hears a case. It is, metaphorically speaking, the life blood of all trials, whether it be at the Court of trial or on appeal, and without which all such trials and hearings are a nullity notwithstanding how well or meticulous such a trial or proceeding had been conducted or how sound or profound the resultant judgement. It is simply a nullity. It is elementary law that jurisdiction is the superstructure upon which the judicial power of a Court of law is founded. In other words, jurisdiction is the life wire, the bedrock and foundation of all judicial and even quasijudicial proceedings.
29. Similarly, in Galadima v. Tamba (2000) 6 S.C (Pt.1) 196 @ 206-207 the Court outlined:
Issue on Court’s jurisdiction is very pivotal and fundamental. Because of its fundamental nature, on the authorities, it can be raised at any state of the trial or even on appeal, and even before the apex Court. The reason for this latitude is obvious. A Court that lacked jurisdiction to entertain a suit, either as a trial or appellate Court, is incompetent to pronounce judgement in respect of any aspect of the matter in controversy before it. Time never runs against a Court to decide on its jurisdiction. The consequence of a Court continuing a case where it lacks jurisdiction is, as it were, like the Court embarking on a frolic which could indisputably result in a nullity for which the appellate Court, so invited, would have no compunction whatsoever to declare null and void. Jurisdiction question, be it in civil or criminal matter, has the same devastating consequence. An attack or question as to jurisdiction cannot be properly glossed over by any Court once it is raised by the defendant or the respondent. The procedure by which such a fundamental issue is raised may not be in consonance with the stipulated rules of Court for questioning a decision of Court, nevertheless, that will never be allowed to defeat the right to question the jurisdictional defect. To do so is to unwittingly postpone the doom’s day.
30. In so far as this Court's jurisdiction is concerned to deal with interpretation of the Bill of Rights there is no dispute. For the law is very clear starting with Article 22(1) which entitles every person to institute proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or is threatened. Similarly, in Article 23(1) confers on the High Court jurisdiction to hear and determine such applications for redress of denial, violation of infringement of, or threat to, a right or fundamental in the Bill of Rights. Whereas in Article 165(3)(b) is also couched in the same language like Article 23(1) of the Constitution. Finally, in Article 165(3)(d)(i) and (ii) confers jurisdiction to determine whether any law is inconsistent with or in contravention of the Constitution and whether anything said to be done under the authority of the Constitution or of any law is inconsistent with or in contravention of the Constitution.
31. The more substantial question is whether the Petitioner, having gone to the Court of Appeal and lost, may now come here. Three related objections arise: res judicata; the principle that a constitutional petition must not be used as an appeal in disguise; and the doctrine of stare decisis.
32. First and foremost, the drafters of the Constitution must envision a dispute worthy adjudication by the High Court in the same spirit of discernment like the Petitioner before me when it enacted Article 50(6)(a)(b) of the Constitution which expressly provides as follows:
(6) A person who is convicted of a criminal offence may petition the
High Court for a new trial if—
(a)The person’s appeal, if any, has been dismissed by the highest Court to which the person is entitled to appeal, or the person did not appeal within the time allowed for appeal; and
(b)New and compelling evidence has become available.
33. This is the only Article of the Constitution which clothes the Court with jurisdiction for a convicted person to petition it for a new trial. The conditions are stringent to be surmounted by the Petitioner and inter alia of those conditions include an appeal has been heard and dismissed by the highest Court of the land or one has missed the appeal window but in his/her possession is new and compelling evidence to be shared with the Court. This provision has been litigated by our Courts to clarify the letter and the spirit of the law and how it applies to our daily lives. The Court in Philip Mueke Maingi & 2 Others v Republic [2022] KEHC 2263 KLR observed:
“fundamentally, the objective of the CJS is that after a fair trial there should be a true verdict. So far as humanly possible there should be no wrongful convictions, and where they occur or if new evidence emerges which undermines the safety of a conviction, they will be quashed and re-trial may be ordered…in my view, the architect of article 50 of the Constitution is that after a criminal trial ends in a conviction, the defendant can file a motion for a new trial only after the conditions stipulated in article 50 (6) are satisfied. The High Courts can grant an order or re-trial – though rarely - to correct significant errors that happened during trial or if substantial new evidence of innocence comes to light.” Whereas in James Macharia Anumbi v. Republic (2017) – The High Court clarified that "new evidence" means material that was unavailable during the original trial despite due diligence, and "compelling evidence" means proof of high probative value capable of potentially changing the verdict.”
34. This is a matter or petition the Court is being invited to interpret the Constitution so that the remedy being sought by the Petitioner can be granted as provided for under Article 23 of the Constitution. In undertaking this task the provisions of Article 259(1) provides as follows:
(1
[...truncated]
1. He Petitioner in this case Maxwel Lubuya Esese was initially charged jointly with Wycliffe Ludenyo Aika and Wyciffe Imbuga Onyango before the SPM at Vihiga in CR. Case No. 1006 of 2013 with the principal count of robbery with violence contrary to Section 295 as read with Section 296(2) of the Penal Code. The particulars of the offence being that on the 30th day of September 2013 at 9.30pm at Chamasilihi Village, Mbale Sub Location, Izava North Location in Vihiga County, jointly with others not before Court while armed with offensive weapons namely pangas and rungus robbed off Lucy Nyaleso Mole six handbags, one mobile phone make Nokia 1280 and cash Kshs.2,000/= all valued at Kshs.11,000/=, the property of Lucy Nyaleso Mole and at the time of such robbery threatened to use actual violence to the said Lucy Nyaleso Mole.
2. In the alternative count, the 1st accused person was charged with handling stolen property contrary to Section 322(1) as read with Section 322(2) of the Penal Code. The particulars of the offence being that on the 30th day of September 2013 at 9.30pm at Chamasilihi Village, Mbale Sub Location, Izava North Location in Vihiga County, otherwise than in the course of stealing, dishonestly/retained six handbags knowing or having reasons to believe them to be stolen goods. In count II, all the accused persons were charged with assault causing actual bodily harm contrary to Section 251 of the Penal Code. The particulars of the offence being that on the 30th day of September 2013 at 9.30pm at Chamasilihi Village, Mbale Sub Location, Izava North Location in Vihiga County, jointly with others not before the Court unlawfully assaulted Josphat Kinavode thereby occasioning him actual bodily harm.
3. Following the finding of guilty and conviction by the learned trial Magistrate she proceeded to impose sentence couched in the following language:
In view of the clear provisions of the Section 296(2) of the Penal Code on mandatory death sentence on conviction for the offence and the confirmation by the bench of five in the Court if Appeal case of Joseph Njuguna Mwaura & 2 Others vs R, I hereby sentence the accused persons to death for the offence of robbery with violence. Right of appeal is 14 days.
4. This conviction and sentence became a subject of an appeal before the High Court in Criminal Appeal Case No. 79 of 2016 in which the session Judge made the following findings and decreed as follows:
33. In the instant case, Ludenyo was apprehended as he tried to flee from the sugar cane plantation when he fell into a ditch. According to Josephat and Vincent, two other people escaped, but soon after Ludenyo’s arrest, Maxwell and Imbuga were arrested some 6 metres away hiding near the fence. Upon arrest, they could not explain why they were in that place at the material time. Some 6 metres away from the scene, the police recovered 6 handbags, which handbags were positively identified by both Josephat and Lucy as the bags that had been stolen from their house that same night at around 9.00pm. The 6 handbags were produced as PExhibit 4. It is noteworthy that the arrests took place within a very short time after the robbery.
34. In summary, I am satisfied that the doctrine of recent possession is applicable in this case. The handbags were found in the very same place where Ludenyo was arrested, and just a short distance away from where Maxwell and Imbuga were found hiding. Though the handbags were not found in the hand of any of the three appellants, the fact that the handbags were found within the vicinity of the area where the three appellants were arrested confirmed the evidence that there had infact been three people at the scene before two of them ran ahead of Ludenyo. This is a confirmation that he three appellants were in possession of the 6 handbags
35. The appellants stated separately that they had simply rushed out in response to the screams they heard, but in my considered view that story was made up by each one of them as they awaited trial. The truth of the matter is that they were all out there in that place as they were trying to evade arrest after committing the robbery.
36. In conclusion and for the reasons above stated, I find no merit in the appellant’s appeals. The same be and are hereby dismissed on both conviction and sentence. Right of appeal within 14 days. It is so ordered
5. It is on record that the matter did not stop there, the Convicts proceeded to the Court of Appeal in Criminal Appeal No. 12 of 2018 and apparently the same issues before the High Court were canvassed and the Appeal’s Court dismissed the appeal of Wycliffe Ludenyo Aika on both conviction and sentence. It goes without saying that if Maxwell and Wycliffe Imbunga Onyango were also in the same bench that decision applies to each one of them mutatis mutandis. This Court is privy to an application filed before Kamau J as she then was the PJ of Vihiga High Court in which the main Actor or Applicant was Wycliffe Ludenyo Aika in which he had pleaded the 13 grounds for the Court’s considerations. The Court having considered all the justiciable issues ruled as follows:
17. having considered the facts of this case, the Applicant’s mitigation, the Prosecution’s response thereto, the pre-sentence report, the Recommendation Letter by Timothy Tirunya ASP for the Officer in-charge Naivasha Maximum Prison dated 16th December 2025, and the Applicant's Certificates of completion on various rehabilitation programs, this Court came to the firm conclusion that a reduction of his death sentence to a sentence of thirty (30) years imprisonment would be reasonable in the circumstances of this case.
18.As the Applicant's sentence was now determinate, this Court was mandated to consider the period that he spent in remand while his trial was on going in line with Section 333(2) of the Criminal Procedure Code Cap 75 (Laws of Kenya).
19.The said Section 333(2) of the Criminal Procedure Code provides that:-“Subject to the provisions of Section 38 of the Penal Code (cap 63) every sentence shall be deemed to commence from, and to include the whole of the day of, the date on which it was pronounced, except where otherwise provided in this Code Provided that where the person sentenced under subsection (1)has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody” (emphasis Court).
20.Further, Clause 4.6.20 (ix) of the Judiciary Sentencing Policy Guidelines provides that:-"The Sentencing Court shall be guided by the sentencing principles and objectives set out in Part I of these the Guidelines in all resentencing hearings. The following mitigating factors were set out by the Supreme Court as particularly relevant in a resentencing hearing:...(ix) Time already spent in prison by the convict..."
21.The requirement under Section 333(2) of the Criminal Procedure
Code was restated by the Court of Appeal in Ahamad Abolfathi Mohammed & Another vs Republic [2018] eKLR.
22.A perusal of the charge sheet herein indicated that the Applicant was arrested on 30th September 2013. Although he was granted bond, he did not seem to have posted the same. He was sentenced on 24th October 2014. It was, therefore, this Court's view that that was a period that ought to be taken into account while computing his sentence.
23.Accordingly, the upshot of this Court's decision was that although the Applicant’s conviction remained undisturbed as it was safe, his sentence of death which was later commuted by Executive Order of the President of Kenya to life imprisonment be and is hereby set aside and substituted with a sentence of thirty (30) years imprisonment which is to run from the date of the sentence of the lower Court.24.For the avoidance of doubt, the period which he spent in custody from 30th September 2013 until 23rd October 2014 be and is hereby taken into account while computing his sentence in accordance with Section 333(2) of the Criminal Procedure Code Cap 75 (Laws of Kenya).
25. It is so ordered.
6. That is in so far as the Courts have been engaged by the convicts in this litigation landscape. It appears to them that justice has not been done or seem to be done by the Courts in our legal system if the c constitutional petition dated 19th day of January 2026 by Maxwell Lubuya Esese is anything to go by where he sought the following prayers:
a. A declaration that the mandatory death sentence imposed upon the Petitioner under Section 296(2) of the Penal Code is unconstitutional for violating Articles 25(c), 27(1),28 and 50(2)(p) of the Constitution of Kenya, 2010.
b. A declaration that the Petitioner is entitled to the benefit of the least severe punishment and to a sentence that respects his dignity and equality before the law.
c. An order directing that the Petitioner be presented before the Vihiga Law Courts or any other competent sentencing Court for sentence re-hearing and re-sentencing, upon consideration of mitigation and in accordance with the Judiciary Sentencing Guidelines
d. An order that Sections 216,329 and 333(2) of the Criminal Procedure Code be fully applied in the Petitioner's re-sentencing.
e. Any other or further orders that this Honourable Court may deem just and expedient in the circumstances.
7. The Petitioner, Maxwel Lubuya Esese, is a convict currently held at
Naivasha Maximum Security Prison under Prison Number
NAV/776/022/LIFE. He was tried, convicted and sentenced to suffer death for the offence of robbery with violence contrary to Section 296(2) of the Penal Code, Cap 63 (Laws of Kenya). He has exhausted the ordinary appellate process. He now comes before this Court, in person, by way of a constitutional petition.
8. His complaint is a narrow but consequential one. He does not, in these proceedings, ask this Court to disturb his conviction. What he says is that the sentence of death visited upon him was not, in any meaningful sense, a judicial sentence at all. It was, he says, a legislative command that the trial Court was obliged to execute; that no mitigation was received or could have availed him. That no regard was accorded to his personal circumstances, his role in the offence, the value of the property taken, or the period he had spent in custody; and that a sentencing process so constituted cannot be reconciled with the Bill of Rights.
9. The Petition, dated 19th January 2026, is supported by the Petitioner's own Affidavit sworn on the same date. He filed Written Submissions dated 10th March 2026. He is a lay litigant and his pleadings bear the marks of that fact. The Court has, consistent with Article 48 and Article 159(2)(d) of the Constitution, read them generously and looked to their substance rather than their form.
10. The reliefs sought are, in summary: a declaration that the mandatory death sentence imposed under Section 296(2) of the Penal Code is unconstitutional; a declaration that the Petitioner is entitled to the benefit of the least severe punishment and to a sentence that respects his dignity and equality before the law; an order that he be set aside from the death sentence and presented before a competent Court for a sentence re-hearing at which mitigation is received; an order that Sections 216, 329 and 333(2) of the Criminal Procedure Code be applied; and such further relief as the Court may deem just.
THE PETITIONER'S CASE
11. He contends that this state of affairs violates: Article 25(c), the nonderogable right to a fair trial; Article 27(1), equality before the law and the right to equal protection and equal benefit of the law; Article 28, the inherent dignity of the person; Article 48, access to justice; and Article 50(1) and (2), fair hearing and the entitlement, if convicted, to appeal to or apply for review by a higher Court.
12. He relies principally on Francis Karioko Muruatetu & another v Republic (Petition 15 & 16 of 2015) [2017] KESC 2 (KLR) ("Muruatetu I"); on the Directions of the Supreme Court in Muruatetu & Another v Republic; Katiba Institute & 5 others (Amicus Curiae) (Petition 15 & 16 of 2015) [2021] KESC 31 (KLR) ("Muruatetu II"); on Ramadhan & 8 Others v General & Another (Petition 5 of 2022 & Constitutional Petition 6 of 2022 (Consolidated)) [2024] KEHC 1173 (KLR); and on the decision of this very Court in Mbugua & 9 others v Attorney General & 3 Others
(Constitutional Petition E002 & E003 of 2024 (Consolidated)) [2025] KEHC 1248 (KLR) (24th February 2025).
13. He further invokes comparative and international authority: Reyes v The Queen [2002] 2 AC 235 (Privy Council, Belize), for the proposition that a mandatory death sentence treats an offender as a faceless member of a class rather than as an individual human being; Rattiram v State of Madhya Pradesh (Supreme Court of India), for the proposition that the denial of fair trial safeguards vitiates the criminal process; and Baptiste v Bahamas (Inter-American Commission on Human Rights), for the proposition that automatic capital punishment is arbitrary and disproportionate. He also relies on the ambiguity said to attend Sections 295, 296 and 297 of the Penal Code, referring the Court to Kaberia Kahinga & others v Republic, and on the audi alteram partem rule.
14. On jurisdiction, he relies on Articles 22, 23(1) and 165(3)(b) of the
Constitution; on Owners of Motor Vessel "Lilian S" v Caltex Oil (Kenya) Ltd [1989] KLR 1; on Samuel Kamau Macharia & another v Kenya Commercial Bank Ltd & 2 others [2012] eKLR; and on Protus Buliba Shikuku v Attorney General for the proposition that constitutional jurisdiction is distinct from appellate jurisdiction and remains available even after the conclusion of criminal appeals where the complaint is one of violation of constitutional rights.
15. In his mitigation, placed before this Court in his submissions and affidavit, the Petitioner states that he has been in custody for approximately thirteen years; that he entered prison as a young and unformed man; that he has maintained a clean disciplinary record; that he has undertaken counselling and guidance in anger management, conflict resolution and responsible living; that he has pursued education and vocational training; that he is remorseful and wishes to apologize to the complainant and to society; that his family stands ready to receive him; and that he undertakes never again to come into conflict with the law.
16. He is aged 43 years. He points out that life expectancy for males in Kenya is approximately 64.4 years, and submits that his continued detention under an unreviewable death sentence condemns him to die in custody without any individualized judicial consideration ever having been given to his case.
THE RESPONDENT'S CASE
17. The Respondent was served but did not file a replying affidavit, grounds of opposition or written submissions, and did not appear at the hearing. The Petition is therefore, in the technical sense, unopposed.
18. That does not relieve the Petitioner of his burden. A constitutional petition is not granted by default. Where the reliefs sought include a declaration touching upon the validity of an Act of Parliament, the Court must be satisfied on the law and on the record that the claim is made out, and must be astute not to grant, by inadvertence or by concession, relief that ought properly to be refused. I have accordingly examined the Petition on its merits and have, of my own motion, considered the arguments that would have been available to the Respondent had it appeared. Chief among these are: the Directions in Muruatetu II; the Supreme Court's decisions in Republic v Mwangi; Initiative for Strategic
Litigation in Africa (ISLA) & 3 others (Amicus Curiae) (Petition E018 of
2023) [2024] KESC 34 (KLR) and Republic v Manyeso (Petition E013 of 2024) [2025] KESC 16 (KLR); the line of Court of Appeal authority holding that the death sentence under Section 296(2) remains a lawful sentence; and the objections of res judicata and of the Court being asked to sit on appeal against a decision of the Court of Appeal.
PRELIMINARY OBSERVATIONS ON THE RECORD
19. Before turning to the issues, four matters on the record require comment.
20. First, the non-joinder of the Attorney-General. The Petition names only the Director of Public Prosecutions as Respondent. Yet prayer (a) invites the Court to declare a provision of the Penal Code unconstitutional. Under Article 156(4)(b) of the Constitution, the Attorney-General represents the national government in Court proceedings, and it is the Attorney-General who is ordinarily the proper party to defend the constitutionality of a Statute. Rule 5(d) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 provides that a petition shall not be defeated by reason only of the misjoinder or non-joinder of parties, and I decline to strike out the Petition on that ground. The non-joinder is, however, of considerable significance when I come to consider the scope of the relief that this Court can properly grant, and I return to it at paragraphs 67 to 72 below.
21. Second, the precision of the pleading. Anarita Karimi Njeru v Republic
[1979] eKLR, as affirmed in Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others [2013] eKLR, requires a Petitioner to set out with reasonable precision the right infringed, the manner of infringement, and the relief sought. The Petition here, though drawn by a lay person, meets that threshold. The impugned provision is identified, the constitutional articles are enumerated, the manner of infringement (the foreclosure of mitigation and of judicial discretion at sentencing) is plainly stated, and the reliefs are specific.
22. Third, certain errors and inconsistencies. The Petition states that the first appeal was dismissed on the "18th day of 2017"; the Written Submissions supply the omission — 18th December 2017 — and I proceed on that basis. The Written Submissions refer in one place to thirteen years in custody and in another to eighteen years; on the face of the record the Petitioner has been in custody since, at latest, 24th October 2014, and in all probability since shortly after 20th September 2013. He has therefore served approximately twelve years. The exact date of his arrest does not appear on the record before me and will have to be established from the trial Court file at the re-sentencing, a matter of some importance for the purposes of Section 333(2) of the Criminal Procedure Code. The Petitioner's affidavit refers to "my advocates on record" although he appears in person; nothing turns on this. The quotation from Ramadhan refers to "Section 279(2)" of the Penal Code; that is plainly a typographical error for Section 297(2).
23. Fourth, the invocation of Article 50(2)(p). The Petitioner leans heavily on Article 50(2)(p), which confers "the benefit of the least severe of the prescribed punishments for an offence, if the prescribed punishment for the offence has been changed between the time that the offence was committed and the time of sentencing." Read strictly, that provision is directed at intervening statutory amendment. Section 296(2) was not amended between September 2013 and October 2014. To that extent the reliance on Article 50(2)(p), standing alone, is misconceived, and I say so plainly. But it is not the Petitioner's only, or best, foundation. The Supreme Court in Muruatetu I grounded its conclusion in Articles 25(c), 27, 28, 48 and 50(1) and (2)(q) of the Constitution, and it is upon those provisions, together with the statutory guarantees in Sections 216, 323, 329 and 333(2) of the Criminal Procedure Code, that the Petitioner's case truly rests. A lay litigant is not to be shut out because he has cited the wrong sub-paragraph of the right Article.
ISSUES FOR DETERMINATION
24. Having considered the Petition, the Supporting Affidavit and the Written Submissions, the issues that fall for determination on part predominately is:
a. Whether this Court has jurisdiction to entertain the Petition, and whether it is barred by res judicata or by the fact that the
Petitioner's appeals have been finally determined;
ANALYSIS AND DETERMINATION
Jurisdiction and res judicata
25. Jurisdiction is, as the Petitioner correctly submits on the authority of Owners of Motor Vessel "Lilian S" v Caltex Oil (Kenya) Ltd [1989] KLR 1, everything; without it a Court must down its tools. And, as the Supreme Court held in Samuel Kamau Macharia & Another v Kenya Commercial Bank Ltd & 2 Others [2012] eKLR, jurisdiction flows from the Constitution or from statute and cannot be conferred by consent or assumed by craft. The Mureithi v Republic [2025] KEHC 3519: Reaffirmed that lower or equal Courts cannot supervise, review, or overturn final decisions issued by superior or peer Courts of competent jurisdiction and in Dari Limited & 5 others v Supreme Court of Kenya [2025] KEHC 8545: Highlighted that the High Court lacks the jurisdictional footprint to entertain suits challenging or reviewing decisions or the conduct of the Supreme Court of Kenya.
26. There is no dispute that this criminal case has been litigated from the primary Court vested with jurisdiction under Article 50(1) of the Constitution together with the corresponding Statutes governing the Subordinate Court jurisdiction distribution within their ranks. The Convicts tested the efficacy and efficiency of our Courts all the way to the Court of Appeal in Criminal Appeal Case No. 12 of 2018 which appeal arose from the decision of the High Court on the same subject matter in HCCRA No. 79 of 2016. Essentially this is a concurrent holder of jurisdiction in the same strength and powers like the session Judge in HCCRA No. 79 of 2016.
27. It is acknowledged that the width and breadth of the High Court jurisdiction is premised under Articles 239(1) and 165(3) of the Constitution to address violation, infringement and/or a threat to a right or fundamental freedom. Thus:
“38. Article 165(3) of the constitution confers on this Court with very wide jurisdiction to deal with any matter that falls within its jurisdiction. That jurisdiction is not exhaustive given that Article 165(3) (e) states that the Court can have any other jurisdiction, original or appellate, conferred on it by legislation. In terms of Article 165(3) (d) (ii), the Court has jurisdiction to determine the question whether anything said to be done under the authority of this Constitution or of any law is inconsistent with, or in contravention of, the constitution. Article 23(1) also states that the Court has jurisdiction to hear and determine applications for redress of denial, violation or infringement of or threat to a right or fundamental freedom in the Bill of Rights. This jurisdiction is to be exercised in accordance with Article 165 of the Constitution. Article 23(3) of the constitution undoubtedly confirms the extent of the width of the jurisdiction of this Court to grant appropriate relief.”
28. What should be borne in mind is whether this Court is competent and properly constituted to entertain the subject matter within its constitutional mandate as outlined above. The issue of jurisdiction forms the bedrock of the proceedings initiated by the petition. It is the jurisdiction that gives the authority and competence to the High Court to entertain all those issues being canvassed by the petition. As stated above in the cited authorities all the way to the Supreme Court it has been recognized and settled that jurisdiction is fundamental and crucial to any dispute adjudication and if jurisdiction is lacking any proceedings that are conducted or entertain would be a nullity however well conducted by the session Judge. Just borrow a leaf from the comparative law jurisdiction, the Court in GTB v. Toyed (Nig) Ltd & Anor (2016) LPELR-4181 (CA) observed:
The law is well settled and it no longer admits of any argument that jurisdiction is the very basis and the life wire of every matter and on which any Court tries or hears a case. It is, metaphorically speaking, the life blood of all trials, whether it be at the Court of trial or on appeal, and without which all such trials and hearings are a nullity notwithstanding how well or meticulous such a trial or proceeding had been conducted or how sound or profound the resultant judgement. It is simply a nullity. It is elementary law that jurisdiction is the superstructure upon which the judicial power of a Court of law is founded. In other words, jurisdiction is the life wire, the bedrock and foundation of all judicial and even quasijudicial proceedings.
29. Similarly, in Galadima v. Tamba (2000) 6 S.C (Pt.1) 196 @ 206-207 the Court outlined:
Issue on Court’s jurisdiction is very pivotal and fundamental. Because of its fundamental nature, on the authorities, it can be raised at any state of the trial or even on appeal, and even before the apex Court. The reason for this latitude is obvious. A Court that lacked jurisdiction to entertain a suit, either as a trial or appellate Court, is incompetent to pronounce judgement in respect of any aspect of the matter in controversy before it. Time never runs against a Court to decide on its jurisdiction. The consequence of a Court continuing a case where it lacks jurisdiction is, as it were, like the Court embarking on a frolic which could indisputably result in a nullity for which the appellate Court, so invited, would have no compunction whatsoever to declare null and void. Jurisdiction question, be it in civil or criminal matter, has the same devastating consequence. An attack or question as to jurisdiction cannot be properly glossed over by any Court once it is raised by the defendant or the respondent. The procedure by which such a fundamental issue is raised may not be in consonance with the stipulated rules of Court for questioning a decision of Court, nevertheless, that will never be allowed to defeat the right to question the jurisdictional defect. To do so is to unwittingly postpone the doom’s day.
30. In so far as this Court's jurisdiction is concerned to deal with interpretation of the Bill of Rights there is no dispute. For the law is very clear starting with Article 22(1) which entitles every person to institute proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or is threatened. Similarly, in Article 23(1) confers on the High Court jurisdiction to hear and determine such applications for redress of denial, violation of infringement of, or threat to, a right or fundamental in the Bill of Rights. Whereas in Article 165(3)(b) is also couched in the same language like Article 23(1) of the Constitution. Finally, in Article 165(3)(d)(i) and (ii) confers jurisdiction to determine whether any law is inconsistent with or in contravention of the Constitution and whether anything said to be done under the authority of the Constitution or of any law is inconsistent with or in contravention of the Constitution.
31. The more substantial question is whether the Petitioner, having gone to the Court of Appeal and lost, may now come here. Three related objections arise: res judicata; the principle that a constitutional petition must not be used as an appeal in disguise; and the doctrine of stare decisis.
32. First and foremost, the drafters of the Constitution must envision a dispute worthy adjudication by the High Court in the same spirit of discernment like the Petitioner before me when it enacted Article 50(6)(a)(b) of the Constitution which expressly provides as follows:
(6) A person who is convicted of a criminal offence may petition the
High Court for a new trial if—
(a)The person’s appeal, if any, has been dismissed by the highest Court to which the person is entitled to appeal, or the person did not appeal within the time allowed for appeal; and
(b)New and compelling evidence has become available.
33. This is the only Article of the Constitution which clothes the Court with jurisdiction for a convicted person to petition it for a new trial. The conditions are stringent to be surmounted by the Petitioner and inter alia of those conditions include an appeal has been heard and dismissed by the highest Court of the land or one has missed the appeal window but in his/her possession is new and compelling evidence to be shared with the Court. This provision has been litigated by our Courts to clarify the letter and the spirit of the law and how it applies to our daily lives. The Court in Philip Mueke Maingi & 2 Others v Republic [2022] KEHC 2263 KLR observed:
“fundamentally, the objective of the CJS is that after a fair trial there should be a true verdict. So far as humanly possible there should be no wrongful convictions, and where they occur or if new evidence emerges which undermines the safety of a conviction, they will be quashed and re-trial may be ordered…in my view, the architect of article 50 of the Constitution is that after a criminal trial ends in a conviction, the defendant can file a motion for a new trial only after the conditions stipulated in article 50 (6) are satisfied. The High Courts can grant an order or re-trial – though rarely - to correct significant errors that happened during trial or if substantial new evidence of innocence comes to light.” Whereas in James Macharia Anumbi v. Republic (2017) – The High Court clarified that "new evidence" means material that was unavailable during the original trial despite due diligence, and "compelling evidence" means proof of high probative value capable of potentially changing the verdict.”
34. This is a matter or petition the Court is being invited to interpret the Constitution so that the remedy being sought by the Petitioner can be granted as provided for under Article 23 of the Constitution. In undertaking this task the provisions of Article 259(1) provides as follows:
(1
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