INTRODUCTION
1. The Petitioner, Patrick Samburi Erode, is a prisoner. He was sentenced to death in 2010 for robbery with violence. The President has since commuted that sentence to life imprisonment. He has been in custody, on the face of the record, since April 2006 — a little over twenty years.
2. He comes to this Court in person, by a Petition dated 13th May 2025, with a single practical object: he wishes a Court to consider, for the first time, whether the punishment he is serving is the punishment he deserves. In his Written Submissions dated 29th January 2026 he asks that his life sentence be substituted with a determinate term of thirty years, credited with the four years he spent in remand.
3. The Respondent, the Director of Public Prosecutions, opposes the Petition by Written Submissions dated 10th March 2026 settled by Ms. Leina Davies, Prosecution Counsel. The opposition is put on a narrow but forceful basis: The President having commuted the sentence under Article 133 of the Constitution, Sections 23(4) of the Power of Mercy Act, 2011 makes that decision final; the Petitioner is therefore no longer serving a mandatory death sentence and falls outside the Muruatetu guidelines; and this Court may intervene only on established judicial review grounds, which are not made out.
4. The case therefore raises a question of some general importance which, so far as Counsel have assisted me, has not been squarely answered by an appellate Court: does the exercise of the prerogative of mercy extinguish a convict's entitlement to the judicial sentencing hearing that the mandatory statutory regime denied him?
The Petitioner's Case
5. The facts are largely common ground. The Petitioner was arrested on 14th April 2006. He was charged in Vihiga Law Courts Criminal Case No. 511 of 2006 with three counts: robbery with violence contrary to Sections 296(2) of the Penal Code; rape contrary to Section 140 of the Penal Code; and committing an unnatural offence contrary to Section 162(a) of the Penal Code. He faced an alternative count of handling stolen goods contrary to Sections 322(2).
6. On 7th July 2010 the Honourable L. O. Onyina, Senior Resident Magistrate, convicted him on all three main counts. He was sentenced to death on Count 1. The sentences on Counts 2 and 3 were, in the Petitioner's words, "held in abeyance".
7. He appealed to the High Court at Kakamega in Criminal Appeal No. 148 of 2010. That appeal, against both conviction and sentence, was dismissed on 11th December 2013 by Dulu and Wasilwa, JJ. He deposes that he has no matter pending before the Court of Appeal.
8. His death sentence was thereafter commuted to life imprisonment by the President in the exercise of the power of mercy.
9. The Petitioner's complaint is that at his trial he was never accorded an opportunity to mitigate, as Sections 216 and 329 of the Criminal Procedure Code contemplate, because Section 296(2) of the Penal Code left the trial Court no choice. He invokes Articles 25(a) and (c), 27, 28, 50(1) and (2), and 51(1) and (3) of the Constitution, and relies on Francis Karioko Muruatetu & another v Republic (Petition 15 & 16 of 2015) [2017] KESC 2 (KLR).
10. In mitigation he says that he was a young man at the time of arrest; that he is a first offender; that he has been law-abiding in custody and has served as a role model at Naivasha Maximum Security Prison; that he has attained grades one and two in carpentry and a certificate in theology; and that he is remorseful and seeks forgiveness. He points to paragraph 4.1 of the Judiciary Sentencing Policy Guidelines and to the objective of rehabilitation and reintegration.
11. On the law he relies on Mutamba Ali Mabanda (Malindi Criminal Appeal No. 12 of 2013), where a sentence was reduced to time served; on Yussuf Dahar Arog v Republic [2007] eKLR; on Ali Abdalla Mwanza v Republic [2018] eKLR, where the Court of Appeal substituted twenty years for forty on the footing that a term exceeding life expectancy is manifestly excessive; on Maurice Ochieng Juma & 3 others v Republic [2020] eKLR; on Walter Marando v Republic [1980] eKLR and R v Ball (1951) 35 Cr App R 164 on disparity; on paragraph 28 at page 117 of the Judiciary Criminal Procedure Bench Book, 2018; and on the sentencing remarks of Masipa, J. in the South African case of S v Pistorius.
12. He further submits that the Honourable the Chief Justice has proposed that life imprisonment be equated with thirty years, an initiative said to be reflected in the Penal Code (Amendment) Bill, 2023, and that a number of prisoners convicted of robbery with violence have obtained thirty-year terms — he cites Abisai Abwonza Chogo v Republic, High Court Criminal Miscellaneous Application No. E093 of 2024 at Vihiga; Aggrey Mbai Injaga v Republic, HCCRREV No. E012 of 2024 at Kibera; HCCRMISCAPP No. E052 of 2021 at Kajiado; and John Gaitho Chege & another v Republic, HCCRA No. 92 of 2023 at Kibera.
The Respondent's Case
13. The Respondent's submissions are concise and I summarize them faithfully.
14. First, the Petitioner is serving a life sentence which is the product of the President's commutation. Section 23(4) of the Power of Mercy Act, 2011 provides that the decision of the President on the exercise of the power of mercy shall be final.
15. Secondly, in Muruatetu & Another v Republic; Katiba Institute & 5 others (Amicus Curiae) (Petition 15 & 16 of 2015) [2021] KESC 31 (KLR) the Supreme Court directed that offenders who have been subject to the mandatory death penalty and who desire to be heard on sentence are entitled to a re-sentencing hearing. The Respondent contends that because the Petitioner's death sentence has been commuted, he is no longer serving a mandatory death sentence and does not come within that dispensation.
16. Thirdly, relying on Joseph Kinyuru Kirimbi v Republic, High Court at Nairobi Miscellaneous Criminal Application No. E401 of 2024, the Respondent submits that once the President has acted under Article 133, the Court is functus officio on the matter of sentence, and the President's decision may be impugned only by judicial review on grounds of procedural fairness under Article 47 or on Wednesbury unreasonableness (Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223). The Petitioner has demonstrated no such ground.
17. The Respondent accordingly prays that the Petition be dismissed.
18. I am grateful to Mr. Davies. His submissions have compelled the Court to confront the real question in the case, and the judgment that follows owes something to the precision with which the objection was framed, even though I do not accept it.
Preliminary Observations on the Record
19. Before turning to the issues I must record a number of matters arising on the papers.
20. Inconsistencies. The Petitioner's name appears as "Erode" in the Petition and supporting affidavit and as "Sambuli Erode" in the submissions; I use the form in the Petition. The date of arrest is given as 14th April 2006 in the supporting affidavit and as 4th April 2006 in the submissions. The first appeal is said in the affidavit to have been dismissed by Dulu and Wasilwa, JJ, and in the submissions by Chitembwe, J. The period served is put at nineteen years in the Petition (May 2025) and at twenty years in the submissions (January 2026). The Respondent's submissions describe the pleading as "an undated Chamber Summons" and the Petitioner as an "Applicant"; the document on the record is a Petition dated 13th May 2025. None of these discrepancies is material to the outcome, but the precise date of arrest will matter very much at the re-sentencing, and I give a direction about it below.
21. The prison record. The Petition is headed from Kamiti Maximum Security Prison under number Kam/112/2025/LIFE; the submissions are filed from Naivasha Maximum Security Prison under number NAV/226/2025/LIFE. The Petitioner appears to have been transferred. Nothing turns on it.
22. Non-joinder of the Attorney-General. The Petition invokes Article 165(3)(d)(i) and puts Sections 296(2) of the Penal Code in issue. Where a Court is asked to pronounce upon the constitutional validity of an Act of Parliament, the Attorney-General is ordinarily the proper party to defend it: Article 156(4) (b). He has not been joined. 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 non-joinder, and I do not strike the Petition out. The omission does, however, bear directly on the scope of the relief I can properly grant, and I return to it at paragraph 71.
23. Article 50(2)(p). The Petitioner repeatedly invokes 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 according to its terms, that provision addresses intervening statutory amendment. Section 296(2) was not amended between April 2006 and July 2010. The reliance is therefore misplaced as regards Count 1, and I say so plainly. It is not, however, fatal. The Supreme Court in Muruatetu I grounded its conclusion in Articles 25(c), 27, 28, 48 and 50(1) and (2)(q), and it is upon those provisions, together with Sections s 216, 323, 329 and 333(2) of the Criminal Procedure Code, that this Petition truly rests. A lay litigant is not to be turned away for citing the wrong sub-paragraph of the right Article. I add that Article 50(2) (p) may yet have work to do in respect of Counts 2 and 3, a matter I address at paragraphs 66 to 69.
24. The pleading standard. The Petition, though drawn by a prisoner, identifies the impugned provision, enumerates the constitutional articles, states the manner of infringement — the foreclosure of mitigation — and specifies the relief. It satisfies Anarita Karimi Njeru v Republic [1979] eKLR as explained in Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] eKLR. Consistently with Articles 48 and 159(2)(d) I have read it for its substance.
Issues for Determination
25. The issues are:
a. Whether this Court has jurisdiction, and whether it is functus officio or otherwise precluded from entertaining the Petition;
b. Whether the commutation of the death sentence by the President extinguishes the Petitioner's claim;
c. Whether the sentencing process in Vihiga Criminal Case No. 511 of 2006 violated the Petitioner's rights, and what this Court may properly declare;
d. Whether this Court should itself substitute a term of thirty years' imprisonment;
e. What is to become of counts 2 and 3, on which sentence was held in abeyance; and
f. What orders, including as to costs, ought to issue.
Analysis and Determination
Issue (a): Jurisdiction
26. Jurisdiction is everything: Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd [1989] KLR 1. It flows from the Constitution or from statute and cannot be arrogated: Samuel Kamau Macharia & another v Kenya Commercial Bank Ltd & 2 others [2012] eKLR.
27. This Court's jurisdiction is conferred by Articles 22(1), 23(1), 165(3) (b) and 165(3) (d) of the Constitution. The Petitioner alleges that rights in the Bill of Rights were denied him and asks this Court to say so. That is a claim this Court is bound to hear.
28. The Respondent's suggestion that the Court is functus officio conflates two different things. A Court is functus officio in respect of a decision it has itself delivered. This Court has delivered no decision in Criminal Case No. 511 of 2006 or in Criminal Appeal No. 148 of 2010, and in any event the constitutional jurisdiction under Article 165(3) (d) is original and is not spent by the conclusion of criminal proceedings. Muruatetu I was itself a petition brought by two men whose convictions and sentences had been confirmed by the Court of Appeal and whose ordinary remedies were exhausted. Had finality been an absolute bar, that landmark decision could never have been given.
29. This is Petition cannot be said to be res judicata as the self-represented Petitioner might not even appreciate how the doctrine of res judicata applies in law. However, as a reminder to the Petitioner the issues surrounding the death penalty for any offender found guilty and convicted of the offence of robbery with violence contrary to Section 296(2) of the Penal Code can be affirmed by this Court to be settled law. I find inspiration in the observations made by the Court in the case of Mbugua & 9 Others v Attorney General & 3 Others [2025] KEHC 1248 (KLR), where the Petitioner questioned the constitutionality of the death sentence under section 296 (2) of the Penal Code the Court in held as follows:
“ “ 48. As the Petition herein was a subject of Section 296(1) of the Penal Code on the offence of robbery with violence whose mitigating circumstances were impeded by the mandatory nature of sentence under Section 296 (2) of the Penal Code which prescribed death sentence as the only punishment, the mandatory nature of the sentence was unconstitutional as it was discriminative in nature. This Petition therefore constituted a valid challenge as contemplated by the Supreme Court in Muruatetu II. 49. ..
50. Having taken into consideration the above factors, this Court was of the considered view that Sections 296(2) and 297(2) of the Penal Code under which the Petitioners herein were charged and convicted, in so far as they did not allow the possibility of differentiation of the gravity of the offences in a graduated manner in terms of severity or attenuation, and the failure to givean opportunity for the consideration of the circumstances of the offender, those Sections were deficient as they did not give those administering the justice system unfettered discretion to mete out proportionate sentences depending on the gravity of the offence. …
66. To the extent that it was now settled that murder convicts did not suffer death as a mandatory sentence, there was no reason why the persons who had been convicted for the offence of robbery with violence under Section 296(2) and 297(2) of the Penal code had to suffer death as a mandatory sentence. Both offences were capital in nature. The subsisting discrimination against convicts of robbery with violence offended the provisions of Article 27(1) of the Constitution of Kenya. 90. It was therefore 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 enjoy that right. In the words of 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 have a right to be protected before the law and must derive equal benefit from the law as the non- capital offenders.”
Similarly, the Court in Ngatia v Republic [2024] KEHC 429 (KLR) held as follows:
“The Court has made a finding that mandatory sentence prescribed in section 296(2) of the Penal Code is unconstitutional. The applicant suffered deprivation of exercise of discretion by the trial Court to impose appropriate sentence or less severe sentence. Therefore, a denial or violation of his right and fundamental freedoms. The death sentence is therefore set aside.”
30. This issue of the death penalty and the mandatories of it keeps on cropping up in our jurisdiction notwithstanding that since 2010 and even prior to that date the conversation has been intense on the direction the country should take in so far as the prescribed sentence for the offence of Treason, Murder and Robbery with Violence. For example, in 2010 Kenya’s Court of Appeal ruled in favour of death row prisoner Geoffrey Ngotho Mutiso, who had challenged the mandatory death sentence provision on the grounds that it denied Judges the opportunity to consider mitigating circumstances that could spare a Defendant’s life. It is not a surprise that despite the death penalty being retained as a legal and valid sentence during the old Constitutional Order and also at the time of enacting the new Constitution. This means that, the death sentence can only be varied or set aside by the Kenyan people themselves by asking Parliament to review the penal provisions which provide for the death penalty. From the very outset the application and imposition of the death penalty by various Courts remains a legal sentence. It is only the mode of this punishment being described as being mandatory which is questionable and notwithstanding the Muruatetu dicta that the removal of mandatory sentence on murder cases is such that is restrictive to the class of person giving it a purposive interpretation, the construction of Article 27 of the Constitution breathes life to it for the principle to apply to the provisions of Sections 296(2) and 297 of the Penal Code.
31. What is even more firming is the Constitution itself which provides under Article 2 (5)(6) which provides as follows:
5. Kenya consists of the territory and territorial waters comprising Kenya on the effective date, and any additional territory and territorial waters as defined by an Act of Parliament.
6. (1) The territory of Kenya is divided into the counties specified in the First Schedule.
(2) The governments at the national and county levels are distinct and inter-dependent and shall conduct their mutual relations on the basis of consultation and cooperation.
(3) A national State organ shall ensure reasonable access to its services in all parts of the Republic, so far as it is appropriate to do so having regard to the nature of the service.
32. The congruence of this can be appreciated from the following provisions under International Law and a commentary to their applications to the domestic law of this Republic:
a. The Universal Declaration of Human Rights (1948): As a member of the international community, Kenya is bound by norms of customary international law other instruments, the Universal Declaration of Human Rights. The which find expression in, among other instruments, the All human beings are born free and equal in following provisions are pertinent: Article 1 which provides, “All human beings are born are born free and in in dignity and rights' and Article 5 which provides, 'No one shall be subjected to torture to the cruel, inhuman or degrading treatment or punishment'. The Death Penalty is regarded as an affront to the dignity of a convicted person. It is also argued that the treatment of a death row inmate as well as the method of execution of the Death Penalty amount to torture, cruel, inhuman and degrading treatment and punishment.
b. The International Covenant on Civil and Political Rights (1966): Kenya is a party to the International Covenant on Civil and Political Rights which it acceded to on 23 March 1976. Article 6 of this Covenant guarantees every human being the right to life but at the same provides for the death penalty so long as the death penalty is meted out for the most serious crimes, in accordance with the law in force at the time of commission of the crime and pursuant to a final judgment rendered by a competent Court. Article 6 also provides for the right of any person sentenced to death to seek pardon or commutation of the sentence. It also prohibits the imposition of the death sentence for crimes committed by persons below eighteen years age and further provides that the death sentence shall not be carried out on pregnant women. Concerning abolition, Article 6 provides that nothing in the article shall be invoked to delay or to prevent the abolition of capital punishment by any State Party to the Covenant. Finally, under Article, no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.
c. The Second Optional Protocol to the International Covenant on Civil and Political Rights (1989): This is the international instrument that has expressly shown its disapproval of the death penalty. It exclusively provides for the abolition of the death penalty. It was adopted by the United Nations General Assembly on 15th December 1989 and entered into force on 11th July 1991. It is noteworthy that Kenya is not a party to this international instrument. Article 1 thereof provides that no one within the jurisdiction of a State Party to the Protocol shall be executed and that each State Party shall take all necessary measures to abolish the Death Penalty within its jurisdiction." The above provisions as reflected particularly in the International Covenant on Civil and Political Rights and its Second Optional Protocol demonstrate compromise that the United Nations had to make to accommodate on the one hand states that are difficult compromise that the United Nations had to make to accommodate, on the one hand, states that are reluctant to abolish the death penalty and those that are, on the other hand to abolish the death penalty and those that are, on the other hand willing to abolish it. Even in the case of the abolitionist states, this compromise is further reflected in the language of Article 1 (1) of the Second Optional Protocol in the use of the phrase 'shall take all necessary measures', rather than giving State Parties a time frame within which to abolish the death penalty.
d. The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984): Kenya is a party to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or punishment which it acceded to on 23rd March 1997. Article 1 defines torture as involving the intentional infliction by a public official of severe pain or suffering, whether physical or mental, on a person for such infliction by a public official of severe pain or suffering, whether physical or mental on a person for such purposes as punishing him for an act he has committed, or intimidating or coercing him. Under Article 2, each State Party is required to take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction. This article also rules out justification of torture under any circumstances whatsoever. Death row convicts may and are known to be subjected to acts of torture and therefore the above Convention is relevant to any discussion concerning the death penalty.
e. Safeguards Guaranteeing Protection of the Rights of Those Facing the Death Penalty: These Safeguards are to be read with the International Covenant on Civil and Political Rights. The safeguards are to the effect that (i) capital punishment may be imposed only for the most serious crimes; (ii) capital punishment may be imposed only for a crime for which the death penalty is prescribed by law at the time of its commission; (iii) persons below 18 years of age at the time of commission of the crime shall not be sentenced to death, nor shall the death sentence be carried out on pregnant women, or on persons who have become insane; (iv) capital punishment may be imposed only when the guilt of the person charged is based upon clear and convincing evidence; (v) capital punishment may only be carried out pursuant to a final judgment rendered by a competent Court after a fair trial; (vi) anyone sentenced to death shall have the right to seek pardon or commutation of sentence which may be granted in all cases of capital shall have the right to seek pardon or commutation of sentence which may be granted in all cases of capital punishment: (vii) capital punishment shall not he carried out pending any anneal and that (vii) where punishment; (vii) capital punishment shall not be carried out pending any appeal; and that (viii) where capital punishment occurs, it shall be carried out so as to inflict minimum possible suffering. The depth of which these safeguards reflects the seriousness with which the Death Penalty is viewed in light of its effect on the fundamental human rights of the person charged with and convicted of a capital offence.
f. The Convention on the Rights of the Child (1989) and the African Charter on the Rights and Welfare of the Child:
Kenya is a party to the UN Convention on the Rights of the Child which it ratified on 2nd September 1990, as well of the as the African Charter on the Rights and Welfare of the Child which it has also ratified. Article 37 (a) of the Convention provides:
No child shall be subjected to torture or other cruel, inhuman or de grading treatment or punishment. Neither capital punishment nor life imprisonment without the possibility of release shall be imposed for offences committed by persons below 18 years of ager.
Article 16 (1) of the Charter provides for protection of the child from all forms of torture, inhuman or degrading treatment and especially physical or mental injury or abuse, neglect or maltreatment, including sexual abuse. Article 17 (2) (a) of the Charter requires states to ensure that no child who is detained or imprisoned or otherwise deprived of his/her liberty is subjected to torture, inhuman or degrading treatment or punishment.
g. The African Charter on Human and Peoples' Rights (1981): Also at the regional level, Kenya is a party to the African Charter on Human and Peoples' Rights which it acceded to on 23rd January 1992. Article 4 of the Banjul Charter, as it is so called, provides that human beings are inviolable and that every human being shall be entitled to respect for his life and the integrity of his person and further that no one may be arbitrarily deprived of this right. Article 5 provides that every individual shall have the right to the respect of the dignity inherent in a human being and to the recognition of his legal status. It also prohibits all forms of exploitation and degradation of man particularly slavery, slave trade, torture, cruel, inhuman or degrading punishment and treatment
33. As the law stands now various benches in Kenya have confirmed the constitutional validity of the death penalty that it does not violate Article 24, 25, 26, 27 & 28 of the Constitution. What has been frowned upon is the mandatory nature of the death penalty for it runs foul the provisions of Article 27 and 50 of the Constitution. This means that the sentence mandates trial Courts to weigh both aggravating and mitigating factors of the offence. The significant constitutional question before me must be therefore be viewed through the lens of Articles 19, 20, 21, 22, 24, 25, 26, 27, 28 & 50 of the Constitution. The jurisprudence of Kenya has evolved significantly on the right to life provided for under Article 26. The import of the case law both prior 2010 and after 2010 is that the right to life includes the right to live with human dignity up to the end of natural life taking the queue from Psalms 90:10 of what is commonly referred as the Holy Book. The Psalmist one remarked:
Whether shall I go from thy spirit? or whither shall I flee from thy presence? If I ascend up into heaven, thou art there: if I make my bed in hell, behold, thou art there. If I take the wings of the morning, and dwelling the uttermost parts of the sea; even there shall thy hand lead me, and thy right hand shall hold me. If I say, Surely the darkness shall cover me; even the night shall be light about me. Yea, the darkness hideth not from thee; but the night shineth as the day: the dark-ness and the light are both alike to thee.
34. This right to life encompasses even the right to die with dignity. The death penalty as it is executed now is by hanging the prisoner at the gallows until he/she takes the last breath. The prisoners at death row are waiting for that final day hence some of the considerations when examining the constitutional framework of the law as it was enacted and stands as a capital punishment. Some of the limits upon which our legal system has addressed is about the mandatory nature of the sentence. The legality of it as a legal sentence falls within the legislative scheme of Parliament. One cannot fathom the physical and psychological suffering associated with hanging of another human being by the executioner of the sentence. It is not possible to rule out that such a sentence is not barbaric, inhumane and cruel within the provisions of Article 25(a) of the Constitution which states as follows: the following right and fundamental freedom shall not be limited from torture and cruel, inhuman or degrading treatment or punishment. In the event Parliament retains the death penalty in its present form with an amendment of it not being mandatory alternative means of executing the sentence must be looked into within the constitutional imperatives to preserve the dignity of our humanity. I am further of the considered view that the death sentence should be a preserve only of the rarest of the crime committed by an offender.
35. This is one question to ponder by the Kenyan people in the event there is public participation in the amendment of the law touching on the death penalty and its mode of execution to ensure the sentence is carried out with decency, dignity and without unnecessary brutality and cruelty.
36. I note the decision of this Court in Moyare v Republic (Criminal Revision E76 of 2024) [2025] KEHC 600 (KLR), to the effect that a re-sentencing application must be taken before the last Court to have passed sentence. That is a sound principle of judicial hierarchy and I respect it. It presents no obstacle here. There was no second appeal; the Petitioner deposes, and the Respondent does not dispute, that nothing is pending before the Court of Appeal. What is more, the present proceeding is not an application for revision but a constitutional petition, which lies in this Court alone, and the relief I shall give is not a re-sentencing by looking into
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1. The Petitioner, Patrick Samburi Erode, is a prisoner. He was sentenced to death in 2010 for robbery with violence. The President has since commuted that sentence to life imprisonment. He has been in custody, on the face of the record, since April 2006 — a little over twenty years.
2. He comes to this Court in person, by a Petition dated 13th May 2025, with a single practical object: he wishes a Court to consider, for the first time, whether the punishment he is serving is the punishment he deserves. In his Written Submissions dated 29th January 2026 he asks that his life sentence be substituted with a determinate term of thirty years, credited with the four years he spent in remand.
3. The Respondent, the Director of Public Prosecutions, opposes the Petition by Written Submissions dated 10th March 2026 settled by Ms. Leina Davies, Prosecution Counsel. The opposition is put on a narrow but forceful basis: The President having commuted the sentence under Article 133 of the Constitution, Sections 23(4) of the Power of Mercy Act, 2011 makes that decision final; the Petitioner is therefore no longer serving a mandatory death sentence and falls outside the Muruatetu guidelines; and this Court may intervene only on established judicial review grounds, which are not made out.
4. The case therefore raises a question of some general importance which, so far as Counsel have assisted me, has not been squarely answered by an appellate Court: does the exercise of the prerogative of mercy extinguish a convict's entitlement to the judicial sentencing hearing that the mandatory statutory regime denied him?
The Petitioner's Case
5. The facts are largely common ground. The Petitioner was arrested on 14th April 2006. He was charged in Vihiga Law Courts Criminal Case No. 511 of 2006 with three counts: robbery with violence contrary to Sections 296(2) of the Penal Code; rape contrary to Section 140 of the Penal Code; and committing an unnatural offence contrary to Section 162(a) of the Penal Code. He faced an alternative count of handling stolen goods contrary to Sections 322(2).
6. On 7th July 2010 the Honourable L. O. Onyina, Senior Resident Magistrate, convicted him on all three main counts. He was sentenced to death on Count 1. The sentences on Counts 2 and 3 were, in the Petitioner's words, "held in abeyance".
7. He appealed to the High Court at Kakamega in Criminal Appeal No. 148 of 2010. That appeal, against both conviction and sentence, was dismissed on 11th December 2013 by Dulu and Wasilwa, JJ. He deposes that he has no matter pending before the Court of Appeal.
8. His death sentence was thereafter commuted to life imprisonment by the President in the exercise of the power of mercy.
9. The Petitioner's complaint is that at his trial he was never accorded an opportunity to mitigate, as Sections 216 and 329 of the Criminal Procedure Code contemplate, because Section 296(2) of the Penal Code left the trial Court no choice. He invokes Articles 25(a) and (c), 27, 28, 50(1) and (2), and 51(1) and (3) of the Constitution, and relies on Francis Karioko Muruatetu & another v Republic (Petition 15 & 16 of 2015) [2017] KESC 2 (KLR).
10. In mitigation he says that he was a young man at the time of arrest; that he is a first offender; that he has been law-abiding in custody and has served as a role model at Naivasha Maximum Security Prison; that he has attained grades one and two in carpentry and a certificate in theology; and that he is remorseful and seeks forgiveness. He points to paragraph 4.1 of the Judiciary Sentencing Policy Guidelines and to the objective of rehabilitation and reintegration.
11. On the law he relies on Mutamba Ali Mabanda (Malindi Criminal Appeal No. 12 of 2013), where a sentence was reduced to time served; on Yussuf Dahar Arog v Republic [2007] eKLR; on Ali Abdalla Mwanza v Republic [2018] eKLR, where the Court of Appeal substituted twenty years for forty on the footing that a term exceeding life expectancy is manifestly excessive; on Maurice Ochieng Juma & 3 others v Republic [2020] eKLR; on Walter Marando v Republic [1980] eKLR and R v Ball (1951) 35 Cr App R 164 on disparity; on paragraph 28 at page 117 of the Judiciary Criminal Procedure Bench Book, 2018; and on the sentencing remarks of Masipa, J. in the South African case of S v Pistorius.
12. He further submits that the Honourable the Chief Justice has proposed that life imprisonment be equated with thirty years, an initiative said to be reflected in the Penal Code (Amendment) Bill, 2023, and that a number of prisoners convicted of robbery with violence have obtained thirty-year terms — he cites Abisai Abwonza Chogo v Republic, High Court Criminal Miscellaneous Application No. E093 of 2024 at Vihiga; Aggrey Mbai Injaga v Republic, HCCRREV No. E012 of 2024 at Kibera; HCCRMISCAPP No. E052 of 2021 at Kajiado; and John Gaitho Chege & another v Republic, HCCRA No. 92 of 2023 at Kibera.
The Respondent's Case
13. The Respondent's submissions are concise and I summarize them faithfully.
14. First, the Petitioner is serving a life sentence which is the product of the President's commutation. Section 23(4) of the Power of Mercy Act, 2011 provides that the decision of the President on the exercise of the power of mercy shall be final.
15. Secondly, in Muruatetu & Another v Republic; Katiba Institute & 5 others (Amicus Curiae) (Petition 15 & 16 of 2015) [2021] KESC 31 (KLR) the Supreme Court directed that offenders who have been subject to the mandatory death penalty and who desire to be heard on sentence are entitled to a re-sentencing hearing. The Respondent contends that because the Petitioner's death sentence has been commuted, he is no longer serving a mandatory death sentence and does not come within that dispensation.
16. Thirdly, relying on Joseph Kinyuru Kirimbi v Republic, High Court at Nairobi Miscellaneous Criminal Application No. E401 of 2024, the Respondent submits that once the President has acted under Article 133, the Court is functus officio on the matter of sentence, and the President's decision may be impugned only by judicial review on grounds of procedural fairness under Article 47 or on Wednesbury unreasonableness (Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223). The Petitioner has demonstrated no such ground.
17. The Respondent accordingly prays that the Petition be dismissed.
18. I am grateful to Mr. Davies. His submissions have compelled the Court to confront the real question in the case, and the judgment that follows owes something to the precision with which the objection was framed, even though I do not accept it.
Preliminary Observations on the Record
19. Before turning to the issues I must record a number of matters arising on the papers.
20. Inconsistencies. The Petitioner's name appears as "Erode" in the Petition and supporting affidavit and as "Sambuli Erode" in the submissions; I use the form in the Petition. The date of arrest is given as 14th April 2006 in the supporting affidavit and as 4th April 2006 in the submissions. The first appeal is said in the affidavit to have been dismissed by Dulu and Wasilwa, JJ, and in the submissions by Chitembwe, J. The period served is put at nineteen years in the Petition (May 2025) and at twenty years in the submissions (January 2026). The Respondent's submissions describe the pleading as "an undated Chamber Summons" and the Petitioner as an "Applicant"; the document on the record is a Petition dated 13th May 2025. None of these discrepancies is material to the outcome, but the precise date of arrest will matter very much at the re-sentencing, and I give a direction about it below.
21. The prison record. The Petition is headed from Kamiti Maximum Security Prison under number Kam/112/2025/LIFE; the submissions are filed from Naivasha Maximum Security Prison under number NAV/226/2025/LIFE. The Petitioner appears to have been transferred. Nothing turns on it.
22. Non-joinder of the Attorney-General. The Petition invokes Article 165(3)(d)(i) and puts Sections 296(2) of the Penal Code in issue. Where a Court is asked to pronounce upon the constitutional validity of an Act of Parliament, the Attorney-General is ordinarily the proper party to defend it: Article 156(4) (b). He has not been joined. 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 non-joinder, and I do not strike the Petition out. The omission does, however, bear directly on the scope of the relief I can properly grant, and I return to it at paragraph 71.
23. Article 50(2)(p). The Petitioner repeatedly invokes 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 according to its terms, that provision addresses intervening statutory amendment. Section 296(2) was not amended between April 2006 and July 2010. The reliance is therefore misplaced as regards Count 1, and I say so plainly. It is not, however, fatal. The Supreme Court in Muruatetu I grounded its conclusion in Articles 25(c), 27, 28, 48 and 50(1) and (2)(q), and it is upon those provisions, together with Sections s 216, 323, 329 and 333(2) of the Criminal Procedure Code, that this Petition truly rests. A lay litigant is not to be turned away for citing the wrong sub-paragraph of the right Article. I add that Article 50(2) (p) may yet have work to do in respect of Counts 2 and 3, a matter I address at paragraphs 66 to 69.
24. The pleading standard. The Petition, though drawn by a prisoner, identifies the impugned provision, enumerates the constitutional articles, states the manner of infringement — the foreclosure of mitigation — and specifies the relief. It satisfies Anarita Karimi Njeru v Republic [1979] eKLR as explained in Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] eKLR. Consistently with Articles 48 and 159(2)(d) I have read it for its substance.
Issues for Determination
25. The issues are:
a. Whether this Court has jurisdiction, and whether it is functus officio or otherwise precluded from entertaining the Petition;
b. Whether the commutation of the death sentence by the President extinguishes the Petitioner's claim;
c. Whether the sentencing process in Vihiga Criminal Case No. 511 of 2006 violated the Petitioner's rights, and what this Court may properly declare;
d. Whether this Court should itself substitute a term of thirty years' imprisonment;
e. What is to become of counts 2 and 3, on which sentence was held in abeyance; and
f. What orders, including as to costs, ought to issue.
Analysis and Determination
Issue (a): Jurisdiction
26. Jurisdiction is everything: Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd [1989] KLR 1. It flows from the Constitution or from statute and cannot be arrogated: Samuel Kamau Macharia & another v Kenya Commercial Bank Ltd & 2 others [2012] eKLR.
27. This Court's jurisdiction is conferred by Articles 22(1), 23(1), 165(3) (b) and 165(3) (d) of the Constitution. The Petitioner alleges that rights in the Bill of Rights were denied him and asks this Court to say so. That is a claim this Court is bound to hear.
28. The Respondent's suggestion that the Court is functus officio conflates two different things. A Court is functus officio in respect of a decision it has itself delivered. This Court has delivered no decision in Criminal Case No. 511 of 2006 or in Criminal Appeal No. 148 of 2010, and in any event the constitutional jurisdiction under Article 165(3) (d) is original and is not spent by the conclusion of criminal proceedings. Muruatetu I was itself a petition brought by two men whose convictions and sentences had been confirmed by the Court of Appeal and whose ordinary remedies were exhausted. Had finality been an absolute bar, that landmark decision could never have been given.
29. This is Petition cannot be said to be res judicata as the self-represented Petitioner might not even appreciate how the doctrine of res judicata applies in law. However, as a reminder to the Petitioner the issues surrounding the death penalty for any offender found guilty and convicted of the offence of robbery with violence contrary to Section 296(2) of the Penal Code can be affirmed by this Court to be settled law. I find inspiration in the observations made by the Court in the case of Mbugua & 9 Others v Attorney General & 3 Others [2025] KEHC 1248 (KLR), where the Petitioner questioned the constitutionality of the death sentence under section 296 (2) of the Penal Code the Court in held as follows:
“ “ 48. As the Petition herein was a subject of Section 296(1) of the Penal Code on the offence of robbery with violence whose mitigating circumstances were impeded by the mandatory nature of sentence under Section 296 (2) of the Penal Code which prescribed death sentence as the only punishment, the mandatory nature of the sentence was unconstitutional as it was discriminative in nature. This Petition therefore constituted a valid challenge as contemplated by the Supreme Court in Muruatetu II. 49. ..
50. Having taken into consideration the above factors, this Court was of the considered view that Sections 296(2) and 297(2) of the Penal Code under which the Petitioners herein were charged and convicted, in so far as they did not allow the possibility of differentiation of the gravity of the offences in a graduated manner in terms of severity or attenuation, and the failure to givean opportunity for the consideration of the circumstances of the offender, those Sections were deficient as they did not give those administering the justice system unfettered discretion to mete out proportionate sentences depending on the gravity of the offence. …
66. To the extent that it was now settled that murder convicts did not suffer death as a mandatory sentence, there was no reason why the persons who had been convicted for the offence of robbery with violence under Section 296(2) and 297(2) of the Penal code had to suffer death as a mandatory sentence. Both offences were capital in nature. The subsisting discrimination against convicts of robbery with violence offended the provisions of Article 27(1) of the Constitution of Kenya. 90. It was therefore 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 enjoy that right. In the words of 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 have a right to be protected before the law and must derive equal benefit from the law as the non- capital offenders.”
Similarly, the Court in Ngatia v Republic [2024] KEHC 429 (KLR) held as follows:
“The Court has made a finding that mandatory sentence prescribed in section 296(2) of the Penal Code is unconstitutional. The applicant suffered deprivation of exercise of discretion by the trial Court to impose appropriate sentence or less severe sentence. Therefore, a denial or violation of his right and fundamental freedoms. The death sentence is therefore set aside.”
30. This issue of the death penalty and the mandatories of it keeps on cropping up in our jurisdiction notwithstanding that since 2010 and even prior to that date the conversation has been intense on the direction the country should take in so far as the prescribed sentence for the offence of Treason, Murder and Robbery with Violence. For example, in 2010 Kenya’s Court of Appeal ruled in favour of death row prisoner Geoffrey Ngotho Mutiso, who had challenged the mandatory death sentence provision on the grounds that it denied Judges the opportunity to consider mitigating circumstances that could spare a Defendant’s life. It is not a surprise that despite the death penalty being retained as a legal and valid sentence during the old Constitutional Order and also at the time of enacting the new Constitution. This means that, the death sentence can only be varied or set aside by the Kenyan people themselves by asking Parliament to review the penal provisions which provide for the death penalty. From the very outset the application and imposition of the death penalty by various Courts remains a legal sentence. It is only the mode of this punishment being described as being mandatory which is questionable and notwithstanding the Muruatetu dicta that the removal of mandatory sentence on murder cases is such that is restrictive to the class of person giving it a purposive interpretation, the construction of Article 27 of the Constitution breathes life to it for the principle to apply to the provisions of Sections 296(2) and 297 of the Penal Code.
31. What is even more firming is the Constitution itself which provides under Article 2 (5)(6) which provides as follows:
5. Kenya consists of the territory and territorial waters comprising Kenya on the effective date, and any additional territory and territorial waters as defined by an Act of Parliament.
6. (1) The territory of Kenya is divided into the counties specified in the First Schedule.
(2) The governments at the national and county levels are distinct and inter-dependent and shall conduct their mutual relations on the basis of consultation and cooperation.
(3) A national State organ shall ensure reasonable access to its services in all parts of the Republic, so far as it is appropriate to do so having regard to the nature of the service.
32. The congruence of this can be appreciated from the following provisions under International Law and a commentary to their applications to the domestic law of this Republic:
a. The Universal Declaration of Human Rights (1948): As a member of the international community, Kenya is bound by norms of customary international law other instruments, the Universal Declaration of Human Rights. The which find expression in, among other instruments, the All human beings are born free and equal in following provisions are pertinent: Article 1 which provides, “All human beings are born are born free and in in dignity and rights' and Article 5 which provides, 'No one shall be subjected to torture to the cruel, inhuman or degrading treatment or punishment'. The Death Penalty is regarded as an affront to the dignity of a convicted person. It is also argued that the treatment of a death row inmate as well as the method of execution of the Death Penalty amount to torture, cruel, inhuman and degrading treatment and punishment.
b. The International Covenant on Civil and Political Rights (1966): Kenya is a party to the International Covenant on Civil and Political Rights which it acceded to on 23 March 1976. Article 6 of this Covenant guarantees every human being the right to life but at the same provides for the death penalty so long as the death penalty is meted out for the most serious crimes, in accordance with the law in force at the time of commission of the crime and pursuant to a final judgment rendered by a competent Court. Article 6 also provides for the right of any person sentenced to death to seek pardon or commutation of the sentence. It also prohibits the imposition of the death sentence for crimes committed by persons below eighteen years age and further provides that the death sentence shall not be carried out on pregnant women. Concerning abolition, Article 6 provides that nothing in the article shall be invoked to delay or to prevent the abolition of capital punishment by any State Party to the Covenant. Finally, under Article, no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.
c. The Second Optional Protocol to the International Covenant on Civil and Political Rights (1989): This is the international instrument that has expressly shown its disapproval of the death penalty. It exclusively provides for the abolition of the death penalty. It was adopted by the United Nations General Assembly on 15th December 1989 and entered into force on 11th July 1991. It is noteworthy that Kenya is not a party to this international instrument. Article 1 thereof provides that no one within the jurisdiction of a State Party to the Protocol shall be executed and that each State Party shall take all necessary measures to abolish the Death Penalty within its jurisdiction." The above provisions as reflected particularly in the International Covenant on Civil and Political Rights and its Second Optional Protocol demonstrate compromise that the United Nations had to make to accommodate on the one hand states that are difficult compromise that the United Nations had to make to accommodate, on the one hand, states that are reluctant to abolish the death penalty and those that are, on the other hand to abolish the death penalty and those that are, on the other hand willing to abolish it. Even in the case of the abolitionist states, this compromise is further reflected in the language of Article 1 (1) of the Second Optional Protocol in the use of the phrase 'shall take all necessary measures', rather than giving State Parties a time frame within which to abolish the death penalty.
d. The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984): Kenya is a party to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or punishment which it acceded to on 23rd March 1997. Article 1 defines torture as involving the intentional infliction by a public official of severe pain or suffering, whether physical or mental, on a person for such infliction by a public official of severe pain or suffering, whether physical or mental on a person for such purposes as punishing him for an act he has committed, or intimidating or coercing him. Under Article 2, each State Party is required to take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction. This article also rules out justification of torture under any circumstances whatsoever. Death row convicts may and are known to be subjected to acts of torture and therefore the above Convention is relevant to any discussion concerning the death penalty.
e. Safeguards Guaranteeing Protection of the Rights of Those Facing the Death Penalty: These Safeguards are to be read with the International Covenant on Civil and Political Rights. The safeguards are to the effect that (i) capital punishment may be imposed only for the most serious crimes; (ii) capital punishment may be imposed only for a crime for which the death penalty is prescribed by law at the time of its commission; (iii) persons below 18 years of age at the time of commission of the crime shall not be sentenced to death, nor shall the death sentence be carried out on pregnant women, or on persons who have become insane; (iv) capital punishment may be imposed only when the guilt of the person charged is based upon clear and convincing evidence; (v) capital punishment may only be carried out pursuant to a final judgment rendered by a competent Court after a fair trial; (vi) anyone sentenced to death shall have the right to seek pardon or commutation of sentence which may be granted in all cases of capital shall have the right to seek pardon or commutation of sentence which may be granted in all cases of capital punishment: (vii) capital punishment shall not he carried out pending any anneal and that (vii) where punishment; (vii) capital punishment shall not be carried out pending any appeal; and that (viii) where capital punishment occurs, it shall be carried out so as to inflict minimum possible suffering. The depth of which these safeguards reflects the seriousness with which the Death Penalty is viewed in light of its effect on the fundamental human rights of the person charged with and convicted of a capital offence.
f. The Convention on the Rights of the Child (1989) and the African Charter on the Rights and Welfare of the Child:
Kenya is a party to the UN Convention on the Rights of the Child which it ratified on 2nd September 1990, as well of the as the African Charter on the Rights and Welfare of the Child which it has also ratified. Article 37 (a) of the Convention provides:
No child shall be subjected to torture or other cruel, inhuman or de grading treatment or punishment. Neither capital punishment nor life imprisonment without the possibility of release shall be imposed for offences committed by persons below 18 years of ager.
Article 16 (1) of the Charter provides for protection of the child from all forms of torture, inhuman or degrading treatment and especially physical or mental injury or abuse, neglect or maltreatment, including sexual abuse. Article 17 (2) (a) of the Charter requires states to ensure that no child who is detained or imprisoned or otherwise deprived of his/her liberty is subjected to torture, inhuman or degrading treatment or punishment.
g. The African Charter on Human and Peoples' Rights (1981): Also at the regional level, Kenya is a party to the African Charter on Human and Peoples' Rights which it acceded to on 23rd January 1992. Article 4 of the Banjul Charter, as it is so called, provides that human beings are inviolable and that every human being shall be entitled to respect for his life and the integrity of his person and further that no one may be arbitrarily deprived of this right. Article 5 provides that every individual shall have the right to the respect of the dignity inherent in a human being and to the recognition of his legal status. It also prohibits all forms of exploitation and degradation of man particularly slavery, slave trade, torture, cruel, inhuman or degrading punishment and treatment
33. As the law stands now various benches in Kenya have confirmed the constitutional validity of the death penalty that it does not violate Article 24, 25, 26, 27 & 28 of the Constitution. What has been frowned upon is the mandatory nature of the death penalty for it runs foul the provisions of Article 27 and 50 of the Constitution. This means that the sentence mandates trial Courts to weigh both aggravating and mitigating factors of the offence. The significant constitutional question before me must be therefore be viewed through the lens of Articles 19, 20, 21, 22, 24, 25, 26, 27, 28 & 50 of the Constitution. The jurisprudence of Kenya has evolved significantly on the right to life provided for under Article 26. The import of the case law both prior 2010 and after 2010 is that the right to life includes the right to live with human dignity up to the end of natural life taking the queue from Psalms 90:10 of what is commonly referred as the Holy Book. The Psalmist one remarked:
Whether shall I go from thy spirit? or whither shall I flee from thy presence? If I ascend up into heaven, thou art there: if I make my bed in hell, behold, thou art there. If I take the wings of the morning, and dwelling the uttermost parts of the sea; even there shall thy hand lead me, and thy right hand shall hold me. If I say, Surely the darkness shall cover me; even the night shall be light about me. Yea, the darkness hideth not from thee; but the night shineth as the day: the dark-ness and the light are both alike to thee.
34. This right to life encompasses even the right to die with dignity. The death penalty as it is executed now is by hanging the prisoner at the gallows until he/she takes the last breath. The prisoners at death row are waiting for that final day hence some of the considerations when examining the constitutional framework of the law as it was enacted and stands as a capital punishment. Some of the limits upon which our legal system has addressed is about the mandatory nature of the sentence. The legality of it as a legal sentence falls within the legislative scheme of Parliament. One cannot fathom the physical and psychological suffering associated with hanging of another human being by the executioner of the sentence. It is not possible to rule out that such a sentence is not barbaric, inhumane and cruel within the provisions of Article 25(a) of the Constitution which states as follows: the following right and fundamental freedom shall not be limited from torture and cruel, inhuman or degrading treatment or punishment. In the event Parliament retains the death penalty in its present form with an amendment of it not being mandatory alternative means of executing the sentence must be looked into within the constitutional imperatives to preserve the dignity of our humanity. I am further of the considered view that the death sentence should be a preserve only of the rarest of the crime committed by an offender.
35. This is one question to ponder by the Kenyan people in the event there is public participation in the amendment of the law touching on the death penalty and its mode of execution to ensure the sentence is carried out with decency, dignity and without unnecessary brutality and cruelty.
36. I note the decision of this Court in Moyare v Republic (Criminal Revision E76 of 2024) [2025] KEHC 600 (KLR), to the effect that a re-sentencing application must be taken before the last Court to have passed sentence. That is a sound principle of judicial hierarchy and I respect it. It presents no obstacle here. There was no second appeal; the Petitioner deposes, and the Respondent does not dispute, that nothing is pending before the Court of Appeal. What is more, the present proceeding is not an application for revision but a constitutional petition, which lies in this Court alone, and the relief I shall give is not a re-sentencing by looking into
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