REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT VIHIGA
MISCELLANEOUS CRIMINAL APPLICATION NO E017 OF 2025
NELSON PESA.………………………………………………………………….APPLICANT
VERSUS
REPUBLIC………………………………………………….…………………RESPONDENT
RULING
INTRODUCTION
1. The Applicant herein was charged with the offence of robbery with violence contrary to Section 296(2) of the Penal Code Cap 63 (Laws of Kenya). He was convicted and sentenced to death.
2. He lodged an appeal in Kakamega High Court Criminal Appeal No180 of 2011 . The same was dismissed. He lodged a second appeal Criminal Appeal No 99 of 2014 at the Court of Appeal but the same was also dismissed.
3. On 11 th March 2025, he filed a Notice of Motion application dated 21 st February 2025 seeking for resentencing to a least prescribed sentence other than the life sentence. He also sought that this court appreciates that life sentence was unconstitutional and discriminative pursuant to Article 27 of the Constitution as it did not leave any margin for rehabilitation and mitigation.
4. In his said application that was supported by his Affidavit, he averred that the death sentence was commuted to life imprisonment following the presidential pardon. He averred that his mitigation was not considered by the three (3) courts. He contended that he had been rehabilitated and reformed. He added that he had done exceptionally well while in prison and had been in custody for seventeen (17) years since arrest.
5. He cited the case of R vs Anderson Mabvuto Criminal Case N. 66 of 2009 (UR) and Republic v Jamson White Criminal Case No 74 of 2008 (UR ) where the Malawian courts held that the maximum sentence was to be reserved for the worst offenders.
6. The Appellant’s Written Submission dated 20 th June 2025 were filed on 3 rd July 2025 while those of the Respondent were dated 31 st July 2025 and filed on 01 st August 2025. The Ruling herein is based on the said Written Submissions that both parties relied upon in their entirety.
LEGAL ANALYSIS
7. The Applicant invoked Article 22, 23(1)(3), 159, 27(1), 28, 165(3)(a), 50(2)(p) of the Constitution of Kenya, 2010, Sections 329, 323, 216, 333(2) of the Criminal Procedure Code. He placed reliance on HCCRPET/E002/2024 Silas Maliolo Zakayo and James Masinde Wafula & 5 others vs Republic and Mombasa High Court Petition No5 of 2022 (consolidated with Constitutional Petition No 6 of 2022 where the court held that the mandatory death penalty under Section 296(2) and 297(2) as unconstitutional. He further invoked Paragraph 4.8, 5.1.21 of the Sentencing Policy Guidelines, 2023.
8. He submitted that his was not the worst offence of robbery since the injury suffered by the Complainant amounted to harm, he was a first time offender and the stolen phone was Siemens A135, identity card and cash of Kshs.1850-/.
9. He averred that he was an orphan with a young family and was the sole bread winner. He also indicated that he was suffering from HIV AIDs and other illness and had learnt his lesson. He explained that he had done well while in prison in different fields especially religion.
10. He urged the court to consider a least prescribed sentence pursuant to Article 25(c) (p) of the Constitution of Kenya. He also asked this court to impose upon him a sentence that would enable him benefit from Section 333(2) of the Criminal Procedure Code.
11. In its response, the Respondent invoked Articles 50(2)(q), (6) and 165 of the Constitution of Kenya and submitted that the Applicant had exhausted all his avenues for appeal and this court could hear his resentencing application. It cited the case of Petition No 15 and 16 (Consolidated) of 2015 Francis Karioko Muruatetu & Another vs Republic (eKLR citation not given) where it was held that the High Court would entertain an application for re-sentencing upon being satisfied that the appeal at the Court of Appeal had been withdrawn.
12. It asserted that in considering the said decision and Sections 216 and 329 of the Criminal Procedure Code, the Petitioner was not given an opportunity to mitigate in the Trial Court before sentencing. It added that, however, the decision in Muruatetu Case did not outlaw the death sentence which was still applicable as discretionary maximum sentence.
13. In the case of Mbugua & 6 Others vs Attorney General & 3 Others (Constitutional Petition E002 & E003 of 2024 (Consolidated)) [2025] KEHC 1248 (KLR) (24 February 2025) (Judgment), this very court held that it was discriminatory to deny offenders who had been convicted of the offence of robbery with violence and attempted robbery with violence the right to have their mitigation during trial considered, while the non-capital offenders enjoyed that right.
14. It recognised that under Article 27(1) of the Constitution of Kenya, persons who had been convicted for robbery with violence and attempted robbery with violence were also equal before the law, they had a right to be protected before the law and had to derive equal benefit from the law as the non- capital offenders.
15. The court’s decision was in line with the directions of the Supreme Court on 6 th July 2021 in Francis Karioko Muruatetu and Another vs Republic [2017] eKLR (commonly now known as Muruatetu II) that the question of constitutionality of the death sentence in robbery with violence cases ought to commence at the High Court and thereafter escalated to the Court of Appeal, if necessary. It rendered itself as follows:-
“ 46.To clear the confusion that exists with regard to the mandatory death sentence in offences other than murder, we direct in respect of other capital offences such as treason under section 40 (3), robbery with violence under section 296 (2), and attempted robbery with violence under section 297 (2) of the Penal Code, that a challenge on the constitutional validity of the mandatory death penalty in such cases should be properly filed, presented, and fully argued before the High Court and escalated to the Court of Appeal, if necessary, at which a similar outcome as that in this case may be reached. Muruatetu as it now stands cannot directly be applicable to those cases (emphasis court).”
16. In the case of Ramadhan & 8 others v General & another (Petition 5 of 2022 & Constitutional Petition 6 of 2022 (Consolidated)) [2024] KEHC 1173 (KLR ) (6 February 2024) (Judgment), Sewe J looked at the mandatory nature of the death sentence under Section 296(2) and 296(2) of the Penal Code and declared it unconstitutional. She further directed that the petitioners be presented before the respective sentencing courts for sentence re-hearing upon appropriate applications
17. In the case of Mbugua & 6 Others vs The Hon Attorney General (Supra ) as consolidated with Alfred Eyase Kinamundu & 2 Others vs the Hon Attorney General & Others (Supra), this court looked at the aspect of re-sentencing of persons who had been convicted under Section 296(2) and Section 297(2) of the Penal Code and rendered itself as follows:-
“67.The purpose of incarceration is rehabilitation and reformation of prisoners. It was psychological torture for a prison to take numerous courses to improve himself or herself in prison but never use those skills in the society. Indeed, learning of skills had the purpose of easing the integration of prisoners back into the society. Life imprisonment denied convicts who were on life sentence hope for a better future. It was discriminatory that all convicts had hope of going home other than those who had been convicted of the offence of robbery with violence and attempted robbery with violence. There had to be a determinate period within which a person had to atone for their sins.”
18. The long indeterminate incarceration while undergoing rehabilitation programs without the prospect of being released was in the considered opinion of this court a blatant violation of the Petitioners’ right to dignity contrary to Article 28 of the Constitution of Kenya.
19. For those who had been convicted and did not have the benefit of mitigating before being sentenced such as the Petitioners herein, they had a reprieve in Article 50(2) of the Constitution of Kenya which sets out some of the principles that were considered to constitute fair trial. One of these principles was the right to lodge an appeal or apply for review in a higher court, if convicted as stipulated in Article 50 (2) (q)) of the Constitution of Kenya.
20. Such mitigation, which would include the behaviour while in prison and proof of reformation and possibility of reintegration in the society which would enable an appellate and/or review court have a holistic view of the case. During appeal or review of a case, a higher court would have had all the facts and circumstances of the accused on record to enable it assess the appropriate sentence in case there was merit for a sentence reduction.
21. In this regard, it found that applicants seeking re-sentencing ought to file documents to support their mitigating factors. These documents could include certificates of programmes they had undergone in prison leading to their rehabilitation and recommendation letters from the In charges of prisons.
22. While considering the present application for re-sentencing, this court was alive to the fact that the Court of Appeal upheld the death sentence that was meted out against the Petitioner herein. It was the mandatory nature of the death sentence that this court found to have been unconstitutional and found that persons who had been convicted for the offence of robbery with violence and attempted robbery ought to be allowed to mitigate and be re-sentenced.
23. This court noted that Appellants who included Francis Karioko Muruatetu in the Court of Appeal case of Gachanja & 7 Others (Criminal Appeal 51 of 2004) [2011] KECA 402 (KLR) (20 May 2011) Judgment were re-sentenced by the High Court on 16 th December 2019 in Misc Criminal No 394 of 2017 consolidated with Misc Criminal Applications Nos 614, 28, 560, 589, 590 and 586 of 2018 .
24. In the same vein, as the Court of Appeal had not yet dealt with the constitutionality of the mandatory nature of death sentence in respect of the Applicant herein. This court therefore finds and hold that it would not be violating the doctrine of stare decisis if it determined that it could allow him to mitigate and then re-sentence him in line with the case of Mbugua & 6 Others vs The Hon Attorney General (Supra) as consolidated with Alfred Eyase Kinamundu & 2 Others vs the Hon Attorney General & Others (Supra) and Ramadhan & 8 others v General & another (Supra) despite the Court of Appeal having upheld his death sentence on appeal.
25. In this regard therefore, the court has recognised that as it had both original and appellate jurisdiction to hear criminal and civil cases as provided in Article 165(3)(a) of the Constitution of Kenya and further it could review the decision of the lower court as provided under Article 50 (2) (q) of the Constitution of Kenya, it did not have to send the lower court file back to the lower court for re-sentencing.
26. To avoid further delays in this matter, this court finds it prudent to consider the mitigation and re-sentencing of the Applicant herein as it already had the lower court file. It is however noteworthy that the Application is devoid of supporting documents including the pre-sentence report and other supporting documents.
DISPOSITION
27. For the foregoing reasons, the upshot of this court’s decision was that the Petitioner’s Notice of Motion application that was dated 21 st February 2025 and filed on 11 th March 2025 was merited and the same be and is hereby allowed in the following terms:-
a. THAT the Petitioner do provide documents to support his mitigation by 29 th May 2026.
b. THAT the Probation Office file a Pre-Sentence Report by 29 th May 2026.
c. THAT the Petitioner be and is hereby directed to appear before this court for mitigation and sentencing on 30 th July 2026 at 10.30 am.
1. It is so ordered.
DATED and DELIVERED at VIHIGA this 29 th day of April 2026
J. KAMAU
JUDGE
hCCR misc appl NO E017 OF 2025 4
IN THE HIGH COURT OF KENYA AT VIHIGA
MISCELLANEOUS CRIMINAL APPLICATION NO E017 OF 2025
NELSON PESA.………………………………………………………………….APPLICANT
VERSUS
REPUBLIC………………………………………………….…………………RESPONDENT
RULING
INTRODUCTION
1. The Applicant herein was charged with the offence of robbery with violence contrary to Section 296(2) of the Penal Code Cap 63 (Laws of Kenya). He was convicted and sentenced to death.
2. He lodged an appeal in Kakamega High Court Criminal Appeal No180 of 2011 . The same was dismissed. He lodged a second appeal Criminal Appeal No 99 of 2014 at the Court of Appeal but the same was also dismissed.
3. On 11 th March 2025, he filed a Notice of Motion application dated 21 st February 2025 seeking for resentencing to a least prescribed sentence other than the life sentence. He also sought that this court appreciates that life sentence was unconstitutional and discriminative pursuant to Article 27 of the Constitution as it did not leave any margin for rehabilitation and mitigation.
4. In his said application that was supported by his Affidavit, he averred that the death sentence was commuted to life imprisonment following the presidential pardon. He averred that his mitigation was not considered by the three (3) courts. He contended that he had been rehabilitated and reformed. He added that he had done exceptionally well while in prison and had been in custody for seventeen (17) years since arrest.
5. He cited the case of R vs Anderson Mabvuto Criminal Case N. 66 of 2009 (UR) and Republic v Jamson White Criminal Case No 74 of 2008 (UR ) where the Malawian courts held that the maximum sentence was to be reserved for the worst offenders.
6. The Appellant’s Written Submission dated 20 th June 2025 were filed on 3 rd July 2025 while those of the Respondent were dated 31 st July 2025 and filed on 01 st August 2025. The Ruling herein is based on the said Written Submissions that both parties relied upon in their entirety.
LEGAL ANALYSIS
7. The Applicant invoked Article 22, 23(1)(3), 159, 27(1), 28, 165(3)(a), 50(2)(p) of the Constitution of Kenya, 2010, Sections 329, 323, 216, 333(2) of the Criminal Procedure Code. He placed reliance on HCCRPET/E002/2024 Silas Maliolo Zakayo and James Masinde Wafula & 5 others vs Republic and Mombasa High Court Petition No5 of 2022 (consolidated with Constitutional Petition No 6 of 2022 where the court held that the mandatory death penalty under Section 296(2) and 297(2) as unconstitutional. He further invoked Paragraph 4.8, 5.1.21 of the Sentencing Policy Guidelines, 2023.
8. He submitted that his was not the worst offence of robbery since the injury suffered by the Complainant amounted to harm, he was a first time offender and the stolen phone was Siemens A135, identity card and cash of Kshs.1850-/.
9. He averred that he was an orphan with a young family and was the sole bread winner. He also indicated that he was suffering from HIV AIDs and other illness and had learnt his lesson. He explained that he had done well while in prison in different fields especially religion.
10. He urged the court to consider a least prescribed sentence pursuant to Article 25(c) (p) of the Constitution of Kenya. He also asked this court to impose upon him a sentence that would enable him benefit from Section 333(2) of the Criminal Procedure Code.
11. In its response, the Respondent invoked Articles 50(2)(q), (6) and 165 of the Constitution of Kenya and submitted that the Applicant had exhausted all his avenues for appeal and this court could hear his resentencing application. It cited the case of Petition No 15 and 16 (Consolidated) of 2015 Francis Karioko Muruatetu & Another vs Republic (eKLR citation not given) where it was held that the High Court would entertain an application for re-sentencing upon being satisfied that the appeal at the Court of Appeal had been withdrawn.
12. It asserted that in considering the said decision and Sections 216 and 329 of the Criminal Procedure Code, the Petitioner was not given an opportunity to mitigate in the Trial Court before sentencing. It added that, however, the decision in Muruatetu Case did not outlaw the death sentence which was still applicable as discretionary maximum sentence.
13. In the case of Mbugua & 6 Others vs Attorney General & 3 Others (Constitutional Petition E002 & E003 of 2024 (Consolidated)) [2025] KEHC 1248 (KLR) (24 February 2025) (Judgment), this very court held that it was discriminatory to deny offenders who had been convicted of the offence of robbery with violence and attempted robbery with violence the right to have their mitigation during trial considered, while the non-capital offenders enjoyed that right.
14. It recognised that under Article 27(1) of the Constitution of Kenya, persons who had been convicted for robbery with violence and attempted robbery with violence were also equal before the law, they had a right to be protected before the law and had to derive equal benefit from the law as the non- capital offenders.
15. The court’s decision was in line with the directions of the Supreme Court on 6 th July 2021 in Francis Karioko Muruatetu and Another vs Republic [2017] eKLR (commonly now known as Muruatetu II) that the question of constitutionality of the death sentence in robbery with violence cases ought to commence at the High Court and thereafter escalated to the Court of Appeal, if necessary. It rendered itself as follows:-
“ 46.To clear the confusion that exists with regard to the mandatory death sentence in offences other than murder, we direct in respect of other capital offences such as treason under section 40 (3), robbery with violence under section 296 (2), and attempted robbery with violence under section 297 (2) of the Penal Code, that a challenge on the constitutional validity of the mandatory death penalty in such cases should be properly filed, presented, and fully argued before the High Court and escalated to the Court of Appeal, if necessary, at which a similar outcome as that in this case may be reached. Muruatetu as it now stands cannot directly be applicable to those cases (emphasis court).”
16. In the case of Ramadhan & 8 others v General & another (Petition 5 of 2022 & Constitutional Petition 6 of 2022 (Consolidated)) [2024] KEHC 1173 (KLR ) (6 February 2024) (Judgment), Sewe J looked at the mandatory nature of the death sentence under Section 296(2) and 296(2) of the Penal Code and declared it unconstitutional. She further directed that the petitioners be presented before the respective sentencing courts for sentence re-hearing upon appropriate applications
17. In the case of Mbugua & 6 Others vs The Hon Attorney General (Supra ) as consolidated with Alfred Eyase Kinamundu & 2 Others vs the Hon Attorney General & Others (Supra), this court looked at the aspect of re-sentencing of persons who had been convicted under Section 296(2) and Section 297(2) of the Penal Code and rendered itself as follows:-
“67.The purpose of incarceration is rehabilitation and reformation of prisoners. It was psychological torture for a prison to take numerous courses to improve himself or herself in prison but never use those skills in the society. Indeed, learning of skills had the purpose of easing the integration of prisoners back into the society. Life imprisonment denied convicts who were on life sentence hope for a better future. It was discriminatory that all convicts had hope of going home other than those who had been convicted of the offence of robbery with violence and attempted robbery with violence. There had to be a determinate period within which a person had to atone for their sins.”
18. The long indeterminate incarceration while undergoing rehabilitation programs without the prospect of being released was in the considered opinion of this court a blatant violation of the Petitioners’ right to dignity contrary to Article 28 of the Constitution of Kenya.
19. For those who had been convicted and did not have the benefit of mitigating before being sentenced such as the Petitioners herein, they had a reprieve in Article 50(2) of the Constitution of Kenya which sets out some of the principles that were considered to constitute fair trial. One of these principles was the right to lodge an appeal or apply for review in a higher court, if convicted as stipulated in Article 50 (2) (q)) of the Constitution of Kenya.
20. Such mitigation, which would include the behaviour while in prison and proof of reformation and possibility of reintegration in the society which would enable an appellate and/or review court have a holistic view of the case. During appeal or review of a case, a higher court would have had all the facts and circumstances of the accused on record to enable it assess the appropriate sentence in case there was merit for a sentence reduction.
21. In this regard, it found that applicants seeking re-sentencing ought to file documents to support their mitigating factors. These documents could include certificates of programmes they had undergone in prison leading to their rehabilitation and recommendation letters from the In charges of prisons.
22. While considering the present application for re-sentencing, this court was alive to the fact that the Court of Appeal upheld the death sentence that was meted out against the Petitioner herein. It was the mandatory nature of the death sentence that this court found to have been unconstitutional and found that persons who had been convicted for the offence of robbery with violence and attempted robbery ought to be allowed to mitigate and be re-sentenced.
23. This court noted that Appellants who included Francis Karioko Muruatetu in the Court of Appeal case of Gachanja & 7 Others (Criminal Appeal 51 of 2004) [2011] KECA 402 (KLR) (20 May 2011) Judgment were re-sentenced by the High Court on 16 th December 2019 in Misc Criminal No 394 of 2017 consolidated with Misc Criminal Applications Nos 614, 28, 560, 589, 590 and 586 of 2018 .
24. In the same vein, as the Court of Appeal had not yet dealt with the constitutionality of the mandatory nature of death sentence in respect of the Applicant herein. This court therefore finds and hold that it would not be violating the doctrine of stare decisis if it determined that it could allow him to mitigate and then re-sentence him in line with the case of Mbugua & 6 Others vs The Hon Attorney General (Supra) as consolidated with Alfred Eyase Kinamundu & 2 Others vs the Hon Attorney General & Others (Supra) and Ramadhan & 8 others v General & another (Supra) despite the Court of Appeal having upheld his death sentence on appeal.
25. In this regard therefore, the court has recognised that as it had both original and appellate jurisdiction to hear criminal and civil cases as provided in Article 165(3)(a) of the Constitution of Kenya and further it could review the decision of the lower court as provided under Article 50 (2) (q) of the Constitution of Kenya, it did not have to send the lower court file back to the lower court for re-sentencing.
26. To avoid further delays in this matter, this court finds it prudent to consider the mitigation and re-sentencing of the Applicant herein as it already had the lower court file. It is however noteworthy that the Application is devoid of supporting documents including the pre-sentence report and other supporting documents.
DISPOSITION
27. For the foregoing reasons, the upshot of this court’s decision was that the Petitioner’s Notice of Motion application that was dated 21 st February 2025 and filed on 11 th March 2025 was merited and the same be and is hereby allowed in the following terms:-
a. THAT the Petitioner do provide documents to support his mitigation by 29 th May 2026.
b. THAT the Probation Office file a Pre-Sentence Report by 29 th May 2026.
c. THAT the Petitioner be and is hereby directed to appear before this court for mitigation and sentencing on 30 th July 2026 at 10.30 am.
1. It is so ordered.
DATED and DELIVERED at VIHIGA this 29 th day of April 2026
J. KAMAU
JUDGE
hCCR misc appl NO E017 OF 2025 4