REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT VIHIGA
MISC. CRIMINAL APPLICATION NO E095 OF 2024
PHILIP MAOMA LEAKEY….………………….….…………………..…APPLICANT
VERSUS
REPUBLIC…………………………………………………………………RESPONDENT
RULING
INTRODUCTION
1. The Applicant was charged with the offence of robbery with violence contrary to Section 296(2) Penal Code Cap 63 (Laws of Kenya) . The Trial Court convicted and sentenced him to death which was later commuted to life imprisonment.
2. Being aggrieved by the said decision, he lodged an appeal at High Court Kakamega HCCRA No 62 of 2004 , which appeal was dismissed. He subsequently lodged Criminal Appeal No 47 of 2023 at the Court of Appeal, Kisumu. He, however, withdrew the same vide a Notice of Withdrawal dated 2 nd April 2025. The matter was withdrawn pursuant to the order dated 10 th July 2025.
3. In a Notice of Motion application dated 14 th October 2024 and filed on 15 th October 2024, he sought a sentence review in Criminal Case No 972 of 2003 at Vihiga Law Courts . In his Affidavit in support of the application, he contended that Article 165(3)(b) of the Constitution empowered the court to hear and determine allegations of infringements of fundamental rights and to grant remedies.
4. He urged this court to find that the death sentence was contrary to Articles 20(1), 23(3)(a) and (d), 27(1), (2) and (4), 29(d) and (f), 48, and 50(2)(q) of the Constitution, and consequently impose a definite sentence. He further relied on Article 50(2)(q) and asked this court to impose a lenient definite sentence on him. He also cited Section 333(2) of the Criminal Procedure Code and prayed that this court take into account the period he had spent in remand custody when determining the sentence.
5. His Written Submission were dated and filed on 23 rd October 2025. Although on 18 th March 2026, the Respondent’s informed this court that it filed Written Submissions, there were none in the CTS portal as at the time the court retired to write its decision. The Ruling herein is, therefore, based on the said Applicant’s Written Submissions that he relied upon in its entirety.
LEGAL ANALYSIS
6. The Applicant submitted that although statutorily, accused persons deserved the death sentence, in the spirit of rehabilitation and reintegration of offenders, the sentences were greatly reduced on resentencing.
7. He, therefore, argued that life imprisonment was constitutionally untenable and that the same was under review in the Penal Code (Amendment) Bill, 2023 which sought to abolish the death penalty and equate life imprisonment with a determinate term of thirty (30) years. He averred that persons convicted of robbery with violence had benefited from the proposed reforms.
8. 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.
9. 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.
10. 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).”
11. In the case of Ramadhan & 8 Others vs Attorney 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 297(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.
12. 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.”
13. 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 Applicant’s right to dignity contrary to Article 28 of the Constitution of Kenya.
14. For those who had been convicted and did not have the benefit of mitigating before being sentenced such as the Applicant 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.
15. 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.
16. 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 Officers in Charge of prisons.
17. While considering the present application for re-sentencing, 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 .
18. This court was, therefore, clear in its mind that it was seized of jurisdiction to entertain an application for re-sentencing. In this regard therefore, the court 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.
19. To avoid further delays in this matter, this court found it prudent to consider the mitigation and re-sentencing of the Applicant herein. While this court noted his submissions on resentencing and the time he spent in remand during trial, it determined that the same would be considered during his mitigation and sentencing which would be after he furnished this court with supporting documents.
DISPOSITION
20. For the foregoing reasons, the upshot of this court’s decision was that the Applicant’s Notice of Motion application dated and filed on 14 th October 2024 was merited and the same be and is hereby allowed in the following terms: -
a. THAT the Applicant do provide documents to support his mitigation by 19 th October 2026.
b. THAT the Probation Office shall file a Pre-Sentence Report by 19 th October 2026.
c. THAT the Applicant be and is hereby directed to appear before this court for mitigation and sentencing on 26 th October 2026 at 2.30pm.
21. It is so ordered.
DATED and DELIVERED at VIHIGA this 16 th day of September 2026
J. KAMAU
JUDGE
HCCR MISC APPL No e095 of 202410
IN THE HIGH COURT OF KENYA AT VIHIGA
MISC. CRIMINAL APPLICATION NO E095 OF 2024
PHILIP MAOMA LEAKEY….………………….….…………………..…APPLICANT
VERSUS
REPUBLIC…………………………………………………………………RESPONDENT
RULING
INTRODUCTION
1. The Applicant was charged with the offence of robbery with violence contrary to Section 296(2) Penal Code Cap 63 (Laws of Kenya) . The Trial Court convicted and sentenced him to death which was later commuted to life imprisonment.
2. Being aggrieved by the said decision, he lodged an appeal at High Court Kakamega HCCRA No 62 of 2004 , which appeal was dismissed. He subsequently lodged Criminal Appeal No 47 of 2023 at the Court of Appeal, Kisumu. He, however, withdrew the same vide a Notice of Withdrawal dated 2 nd April 2025. The matter was withdrawn pursuant to the order dated 10 th July 2025.
3. In a Notice of Motion application dated 14 th October 2024 and filed on 15 th October 2024, he sought a sentence review in Criminal Case No 972 of 2003 at Vihiga Law Courts . In his Affidavit in support of the application, he contended that Article 165(3)(b) of the Constitution empowered the court to hear and determine allegations of infringements of fundamental rights and to grant remedies.
4. He urged this court to find that the death sentence was contrary to Articles 20(1), 23(3)(a) and (d), 27(1), (2) and (4), 29(d) and (f), 48, and 50(2)(q) of the Constitution, and consequently impose a definite sentence. He further relied on Article 50(2)(q) and asked this court to impose a lenient definite sentence on him. He also cited Section 333(2) of the Criminal Procedure Code and prayed that this court take into account the period he had spent in remand custody when determining the sentence.
5. His Written Submission were dated and filed on 23 rd October 2025. Although on 18 th March 2026, the Respondent’s informed this court that it filed Written Submissions, there were none in the CTS portal as at the time the court retired to write its decision. The Ruling herein is, therefore, based on the said Applicant’s Written Submissions that he relied upon in its entirety.
LEGAL ANALYSIS
6. The Applicant submitted that although statutorily, accused persons deserved the death sentence, in the spirit of rehabilitation and reintegration of offenders, the sentences were greatly reduced on resentencing.
7. He, therefore, argued that life imprisonment was constitutionally untenable and that the same was under review in the Penal Code (Amendment) Bill, 2023 which sought to abolish the death penalty and equate life imprisonment with a determinate term of thirty (30) years. He averred that persons convicted of robbery with violence had benefited from the proposed reforms.
8. 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.
9. 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.
10. 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).”
11. In the case of Ramadhan & 8 Others vs Attorney 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 297(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.
12. 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.”
13. 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 Applicant’s right to dignity contrary to Article 28 of the Constitution of Kenya.
14. For those who had been convicted and did not have the benefit of mitigating before being sentenced such as the Applicant 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.
15. 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.
16. 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 Officers in Charge of prisons.
17. While considering the present application for re-sentencing, 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 .
18. This court was, therefore, clear in its mind that it was seized of jurisdiction to entertain an application for re-sentencing. In this regard therefore, the court 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.
19. To avoid further delays in this matter, this court found it prudent to consider the mitigation and re-sentencing of the Applicant herein. While this court noted his submissions on resentencing and the time he spent in remand during trial, it determined that the same would be considered during his mitigation and sentencing which would be after he furnished this court with supporting documents.
DISPOSITION
20. For the foregoing reasons, the upshot of this court’s decision was that the Applicant’s Notice of Motion application dated and filed on 14 th October 2024 was merited and the same be and is hereby allowed in the following terms: -
a. THAT the Applicant do provide documents to support his mitigation by 19 th October 2026.
b. THAT the Probation Office shall file a Pre-Sentence Report by 19 th October 2026.
c. THAT the Applicant be and is hereby directed to appear before this court for mitigation and sentencing on 26 th October 2026 at 2.30pm.
21. It is so ordered.
DATED and DELIVERED at VIHIGA this 16 th day of September 2026
J. KAMAU
JUDGE
HCCR MISC APPL No e095 of 202410