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PRAYERS
The Petitioner seeks the following orders:
i. A declaration that the death sentence imposed by the trial court, confirmed by the High Court and the Court of Appeal, and later commuted to life imprisonment by the President, is inconsistent with Articles 50(2)(h)(p) of the Constitution and Section 329 of the Criminal Procedure Code.
ii. A declaration that Section 296(2) of the Penal Code is inconsistent with Articles 26(1), 27(1)(2), 28, 48, and 50(1)(2)(p)(q) of the Constitution.
iii. A declaration that the mandatory death sentence imposed on the Petitioner was unconstitutional as it failed to consider the Petitioner’s mitigation and the unique facts and circumstances of the offence.
iv. A declaration that the Petitioner’s constitutional rights were violated.
v. That this Court receives the Petitioner’s mitigation and determines an appropriate and proportionate sentence in line with Article 50(2)(p) of the Constitution.
vi. That the Petitioner’s resentencing be conducted by the sentencing court pursuant to Paragraph 4.8.18 of the Sentencing Policy Guidelines, 2023.
The Petitioner urges this Court to intervene and receive his mitigation submissions for consideration, or alternatively, to find that the period he has served in prison is sufficient and order his release. The Petition is supported by a sworn affidavit wherein he deposes that the death sentence is a cruel punishment, that he was denied the right to mitigation, and that the mandatory nature of the death penalty deprived the trial court of discretion to consider his circumstances.
BACKGROUND
3. The Petitioner, PIUS MUKABE MULEWA, was charged with the offence of robbery with violence contrary to Section 296(2) of the Penal Code in Criminal Case No. 1186 of 1992 before the Chief Magistrate’s Court at Mombasa. He was convicted and sentenced to death. His appeal to the High Court at Mombasa, H.C. Criminal Appeal No. 289 of 1995, was dismissed on 3rd April 2000. His subsequent appeal to the Court of Appeal, Criminal Appeal No. 103 of 2001, was dismissed on 23rd July 2004, confirming the death sentence.
The Petitioner has now been in lawful custody for thirty-two (32) years. He urges this Court to review the sentence imposed and substitute it with a lenient definite sentence, taking into account his age, rehabilitation, and the general life expectancy of human beings.
GROUNDS FOR THE PETITION
5. The Petitioner asserts that:
i. He was sentenced under the mandatory provisions of Section 296(2) of the Penal Code without consideration of mitigation.
ii. The directions in Muruatetu & Another v Republic; Katiba Institute & 4 Others (Amicus Curiae) (Petitions 15 & 16 of 2015) [2021] KESC 31 clarified that constitutional challenges to mandatory death penalties should be lodged before the High Court.
iii. The Constitutional Court in Shaban Salim Ramadhan & Others v Republic (Petition Nos. 5 & 6 of 2022, consolidated) declared the mandatory death sentence under Sections 296(2) and 297(2) unconstitutional.
iv. Paragraphs 4.8.14–4.8.26 of the Sentencing Policy Guidelines, 2023 empower the High Court to entertain re-sentencing applications after all appeals have been exhausted.
SUBMISSIONS
6. The PETITIONER submitted that re-sentencing is anchored under Articles 22, 23, and 165 of the Constitution and Paragraphs 4.8.14–4.8.26 of the Sentencing Policy Guidelines, 2023. The High Court has jurisdiction to determine whether the Petitioner’s rights under Articles 25(a)(c), 26, 27, 28, 48, and 50 have been violated by the imposition of a mandatory death sentence later commuted to life imprisonment.
He cited The Supreme Court in Muruatetu (Directions of 6th July 2021)which he says clarified that where an appeal is pending before the Court of Appeal, the High Court may entertain a re-sentencing petition upon being satisfied that the appeal has been withdrawn.
ON THE MANDATORY DEATH SENTENCE UNCONSTITUTIONAL he cited
The Constitutional Court at Mombasa in Shaban Salim Ramadhan & Others v Republic (Petition Nos. 5 & 6 of 2022, consolidated) declared the mandatory death sentence for robbery with violence and attempted robbery with violence unconstitutional. He also cited The Court of Appeal in Omukanga v Republic (Criminal Appeal No. 260 of 2019) [2023] KECA 430 (KLR) which similarly reviewed the death sentence to a definite term.
The appellant argued that this effectively means that a court can impose a sentence other than death in appropriate cases of robbery with violence.
INDETERMINATE LIFE SENTENCE
10. The Petitioner further challenges the indeterminate nature of the life sentence he is serving, arguing that it violates Articles 28 and 29 of the Constitution as it subjects him to cruel, inhuman, and degrading treatment. He prays that the Court fixes a definite term of imprisonment.
HE relied in THE Court of Appeal decision in Manyeso v Republic (Criminal Appeal No. 12 of 2021) [2023] KECA 827 (KLR) and Evans Nyamari Ayako v Republic (Criminal Appeal No. 22 of 2022)which declared the life sentence unconstitutional. This position was adopted in Boniface Keya v Republic Misc. Cr. Petition No. E007 of 2023 (Kapenguria).
The Petitioner also relies on Article 10(3) of the International Covenant on Civil and Political Rights, ratified by Kenya in 1972, which emphasizes rehabilitation as the essential aim of imprisonment.
PETITIONER’S MITIGATION AND REHABILITATION
13. The Petitioner presented extensive evidence of rehabilitation, including over twenty (20) certificates from correctional, educational, and spiritual programs undertaken during incarceration. He contends that further incarceration would serve no rehabilitative purpose.
He cited various authorities where resentencing was granted, including James Kariuki Wagana v Republic [2018] eKLR, Simon Kimani Maina v Republic [2019] eKLR, Joseph Kaberia Kahiga v Republic [2019] eKLR, and Martin Bahati Makoha & Another v Republic [2018] eKLR, in which courts substituted death sentences with definite terms based on mitigation and rehabilitation.
He also relies on Ahamad Abolfathi Mohamed & Another v Republic [2018] eKLR and Jona & 87 Others v Kenya Prison Service & 2 Others (Petition 15 of 2020) [2021] KESC 457, where courts emphasized that under Section 333(2) of the Criminal Procedure Code, time spent in custody must be considered during sentencing or resentencing.
ANALYSIS AND DETERMINATION
16. I have considered the Petition, the supporting affidavit, and the cited authorities. The Applicant and others were convicted of robbery with violence in circumstances that involved the commandeering of a motor vehicle and the fatal shooting of the tour guide. The assailants were dressed in police uniform and armed with a pistol and knives. These circumstances amount to aggravated robbery of the most serious nature.
I have noted the Petitioner’s achievements and rehabilitative efforts. However, the Court of Appeal dealt with the sentence, and the Supreme Court, in Republic v Ayako (Petition No. 2 of 2024), held that a life sentence means life imprisonment. Accordingly, this settles the issue of the indeterminate nature of such a sentence.
In the present circumstances, considering the gravity of the offence and the loss of life involved, the Applicant does not merit a further reduction of sentence. Excessive force was used,not only to injure but to kill and this aggravates the offence.
CONCLUSION
19. The petiton lacks merit and is accordingly dismissed.
DATED, SIGNED AND DELIVERED AT MOMBASA THIS 14th DAY OF NOVEMBER 2025.
HON. LADY JUSTICE W. K. MICHENI
JUDGE
In the presence of:
THE APPLICANT IN PERSON
…MR NGIRI FOR THE STATE
…BEBORA COURT ASSISTANT
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PRAYERS
The Petitioner seeks the following orders:
i. A declaration that the death sentence imposed by the trial court, confirmed by the High Court and the Court of Appeal, and later commuted to life imprisonment by the President, is inconsistent with Articles 50(2)(h)(p) of the Constitution and Section 329 of the Criminal Procedure Code.
ii. A declaration that Section 296(2) of the Penal Code is inconsistent with Articles 26(1), 27(1)(2), 28, 48, and 50(1)(2)(p)(q) of the Constitution.
iii. A declaration that the mandatory death sentence imposed on the Petitioner was unconstitutional as it failed to consider the Petitioner’s mitigation and the unique facts and circumstances of the offence.
iv. A declaration that the Petitioner’s constitutional rights were violated.
v. That this Court receives the Petitioner’s mitigation and determines an appropriate and proportionate sentence in line with Article 50(2)(p) of the Constitution.
vi. That the Petitioner’s resentencing be conducted by the sentencing court pursuant to Paragraph 4.8.18 of the Sentencing Policy Guidelines, 2023.
The Petitioner urges this Court to intervene and receive his mitigation submissions for consideration, or alternatively, to find that the period he has served in prison is sufficient and order his release. The Petition is supported by a sworn affidavit wherein he deposes that the death sentence is a cruel punishment, that he was denied the right to mitigation, and that the mandatory nature of the death penalty deprived the trial court of discretion to consider his circumstances.
BACKGROUND
3. The Petitioner, PIUS MUKABE MULEWA, was charged with the offence of robbery with violence contrary to Section 296(2) of the Penal Code in Criminal Case No. 1186 of 1992 before the Chief Magistrate’s Court at Mombasa. He was convicted and sentenced to death. His appeal to the High Court at Mombasa, H.C. Criminal Appeal No. 289 of 1995, was dismissed on 3rd April 2000. His subsequent appeal to the Court of Appeal, Criminal Appeal No. 103 of 2001, was dismissed on 23rd July 2004, confirming the death sentence.
The Petitioner has now been in lawful custody for thirty-two (32) years. He urges this Court to review the sentence imposed and substitute it with a lenient definite sentence, taking into account his age, rehabilitation, and the general life expectancy of human beings.
GROUNDS FOR THE PETITION
5. The Petitioner asserts that:
i. He was sentenced under the mandatory provisions of Section 296(2) of the Penal Code without consideration of mitigation.
ii. The directions in Muruatetu & Another v Republic; Katiba Institute & 4 Others (Amicus Curiae) (Petitions 15 & 16 of 2015) [2021] KESC 31 clarified that constitutional challenges to mandatory death penalties should be lodged before the High Court.
iii. The Constitutional Court in Shaban Salim Ramadhan & Others v Republic (Petition Nos. 5 & 6 of 2022, consolidated) declared the mandatory death sentence under Sections 296(2) and 297(2) unconstitutional.
iv. Paragraphs 4.8.14–4.8.26 of the Sentencing Policy Guidelines, 2023 empower the High Court to entertain re-sentencing applications after all appeals have been exhausted.
SUBMISSIONS
6. The PETITIONER submitted that re-sentencing is anchored under Articles 22, 23, and 165 of the Constitution and Paragraphs 4.8.14–4.8.26 of the Sentencing Policy Guidelines, 2023. The High Court has jurisdiction to determine whether the Petitioner’s rights under Articles 25(a)(c), 26, 27, 28, 48, and 50 have been violated by the imposition of a mandatory death sentence later commuted to life imprisonment.
He cited The Supreme Court in Muruatetu (Directions of 6th July 2021)which he says clarified that where an appeal is pending before the Court of Appeal, the High Court may entertain a re-sentencing petition upon being satisfied that the appeal has been withdrawn.
ON THE MANDATORY DEATH SENTENCE UNCONSTITUTIONAL he cited
The Constitutional Court at Mombasa in Shaban Salim Ramadhan & Others v Republic (Petition Nos. 5 & 6 of 2022, consolidated) declared the mandatory death sentence for robbery with violence and attempted robbery with violence unconstitutional. He also cited The Court of Appeal in Omukanga v Republic (Criminal Appeal No. 260 of 2019) [2023] KECA 430 (KLR) which similarly reviewed the death sentence to a definite term.
The appellant argued that this effectively means that a court can impose a sentence other than death in appropriate cases of robbery with violence.
INDETERMINATE LIFE SENTENCE
10. The Petitioner further challenges the indeterminate nature of the life sentence he is serving, arguing that it violates Articles 28 and 29 of the Constitution as it subjects him to cruel, inhuman, and degrading treatment. He prays that the Court fixes a definite term of imprisonment.
HE relied in THE Court of Appeal decision in Manyeso v Republic (Criminal Appeal No. 12 of 2021) [2023] KECA 827 (KLR) and Evans Nyamari Ayako v Republic (Criminal Appeal No. 22 of 2022)which declared the life sentence unconstitutional. This position was adopted in Boniface Keya v Republic Misc. Cr. Petition No. E007 of 2023 (Kapenguria).
The Petitioner also relies on Article 10(3) of the International Covenant on Civil and Political Rights, ratified by Kenya in 1972, which emphasizes rehabilitation as the essential aim of imprisonment.
PETITIONER’S MITIGATION AND REHABILITATION
13. The Petitioner presented extensive evidence of rehabilitation, including over twenty (20) certificates from correctional, educational, and spiritual programs undertaken during incarceration. He contends that further incarceration would serve no rehabilitative purpose.
He cited various authorities where resentencing was granted, including James Kariuki Wagana v Republic [2018] eKLR, Simon Kimani Maina v Republic [2019] eKLR, Joseph Kaberia Kahiga v Republic [2019] eKLR, and Martin Bahati Makoha & Another v Republic [2018] eKLR, in which courts substituted death sentences with definite terms based on mitigation and rehabilitation.
He also relies on Ahamad Abolfathi Mohamed & Another v Republic [2018] eKLR and Jona & 87 Others v Kenya Prison Service & 2 Others (Petition 15 of 2020) [2021] KESC 457, where courts emphasized that under Section 333(2) of the Criminal Procedure Code, time spent in custody must be considered during sentencing or resentencing.
ANALYSIS AND DETERMINATION
16. I have considered the Petition, the supporting affidavit, and the cited authorities. The Applicant and others were convicted of robbery with violence in circumstances that involved the commandeering of a motor vehicle and the fatal shooting of the tour guide. The assailants were dressed in police uniform and armed with a pistol and knives. These circumstances amount to aggravated robbery of the most serious nature.
I have noted the Petitioner’s achievements and rehabilitative efforts. However, the Court of Appeal dealt with the sentence, and the Supreme Court, in Republic v Ayako (Petition No. 2 of 2024), held that a life sentence means life imprisonment. Accordingly, this settles the issue of the indeterminate nature of such a sentence.
In the present circumstances, considering the gravity of the offence and the loss of life involved, the Applicant does not merit a further reduction of sentence. Excessive force was used,not only to injure but to kill and this aggravates the offence.
CONCLUSION
19. The petiton lacks merit and is accordingly dismissed.
DATED, SIGNED AND DELIVERED AT MOMBASA THIS 14th DAY OF NOVEMBER 2025.
HON. LADY JUSTICE W. K. MICHENI
JUDGE
In the presence of:
THE APPLICANT IN PERSON
…MR NGIRI FOR THE STATE
…BEBORA COURT ASSISTANT
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