https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8264

Asava v Republic (Criminal Petition E003 of 2026) [2026] KEHC 8264 (KLR) (11 June 2026) (Ruling) Neutral citation: [2026] KEHC 8264 (KLR) Republic of Kenya In the High Court at Vihiga Criminal Petition E003 of 2026 RN Nyakundi, J June 11, 2026 IN THE MATTER OF ARTICLES 23(1), 25(c), 27(10) (4), 28, 48, 50(1) (2) (p) (q) AND 165(3) OF THE CONSTITUTION OF KENYA AND IN THE MATTER OF SECTION 296 (2) OF THE PENAL CODE CAP 63 LAWS OF KENYA Between Silas Asava Petitioner and Republic Respondent Ruling 1.Before this Court is an application dated 29th March 2026, the Petitioner seeks the following orders:a.Spent.b.The honourable Court be pleased to grant a declaration that the constitutional rights of the Petitioner to a fair trial were violated when their mitigations were not considered by the trail Courtc.The honourable Court be pleased to grant a declaration that the constitutional rights of the Petitioner to equal protection and equal benefit of the law (Article 27(1)), freedom from discrimination (Article 27(4)) and right to access justice (Article 48) were also violated. 2.The application was based on the following grounds: -a.That, the petitioner was charged with the offence of robbery with violence contrary to section 296[2] of the penal code and sentenced to suffer death.b.That, the petitioner appealed to the high Court and was dismissed vide HCCRA/53/2015 on 26/09/2016c.That, the petitioner appealed to the Court of appeal vide COA/Criminal Appeal No. 167/2019 and was dismissed on the 19/12/2025d.That, this Petition is premised on the violation of the Petitioner's right to a fair trial and to be specific violation of Article 25(c), Article 50(1), Article 50(2)(c) & (k), Article 48, Article 27 and Article 28 of the Constitution of Kenya.e.That, the twin rules of natural justice that no man shall be a judge in his own cause (Nemo Judex in causa sua) and that no man shall be condemned unheard (Audi alteram partem) are cardinal principles by law which are fundamental in our justice system which are basically an embodiment of the duty to cat fairly were not observed. 3.In support of the application is an affidavit sworn by Silas Asava who deponed as follows:i.That I am a Kenyan male adult of sound mind and dispositionii.That, 1 the Petitioner herein seeking the redress of the violation of our right to a fair trial pursuant to Article 23 as read with Article 165(3)(b) of the Constitution of Kenya.iii.That, the twin rules of natural justice that no man shall be a judge in his own cause (Nemo Judex in causa sua) and that no man shall be condemned unheard (Audi alteram partem) are cardinal principles of law which are fundamental in our justice system which are basically an embodiment of the duty to act fairly were not observed.iv.That, without fair hearing there cannot be fair determination of any case by a Court of law. In Ann Njogu & 5 Others-vs-Republic Misc. Appl. No 551 of 2007, the Court rendered that "Upon determination that the constitutional rights of the Applicants have been violated any prosecution against them or any of them, on the basis of the events is null and void, and will remain so, irrespective of the weight of the evidence that the police might have in support of their case. This is on the simple reason that such a prosecution would be based on an illegality and a null and void case that there is no yet known cure for the nullity --- once it is shown that his/her constitutional and fundamental rights were violated...,.v.That, the Supreme Court of India in Rattiram-vs-State of M.P. (12) rendered that “Fundamentally, a fair and impartial trial has a sacrosanct purpose. It has a demonstrable object that the accused should not be prejudiced. A fair trial is required to be conducted in such a manner which would totally ostracize injustice prejudice, dishonestly and favoritism...vi.That, in the case Juma & Others-vs-AG. (2003) 2EA 461 the Court held that "The onus of establishing the justification for a violation of any such fundamental rights guaranteed by the protection of the law, provisions of the constitution must be on the party alleging such justification to derogate from the constitutional guarantee."vii.That, I humbly pray that this honourable Court be persuaded and more so due to the Court’s open bias against the Petitioner, that the Petitioner's fundamental rights guaranteed under the Constitution, pursuant to Article 50(1)(2)(c) & (k), were violated which violation prejudiced the appellant in the defence of the case facing him, freedoms in the Bill of Rights belong to each individual and are not granted by the State and are only subject only to the limitations contemplated in this Constitution.viii.That, the scope of limitations for fundamental rights and freedoms is contemplated in Article 24 of the Constitution that a right or fundamental freedom in the Bill of Rights shall not be limited except by law, and then only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors and the relation between the limitation and its purpose and whether there are less restrictive means to achieve the purpose.ix.That, the right to a fair trial is one of the inalienable rights as per Article 25(c) of the Constitution.x.That, it is a fundamental duty of the State and every State organ to observe, respect, protect, promote and fulfil the rights and fundamental freedoms in the Bill of Rights.xi.That, every person is equal before the law and has the right to equal protection and equal benefit of the law which equality includes the full and equal enjoyment of all rights and fundamental freedoms and the State, including its organs, shall not discriminate directly or indirectly against any person on any ground.xii.That, the death imprisonment imposed by the trial Court as a result of the conviction was both harsh and excessive.xiii.That, the sentence was imposed without consideration of my mitigation factors and also without consideration of the unique facts and circumstances of my case.xiv.That, where a Court listens to mitigating circumstances but has, nonetheless, to impose a set sentence, the sentence imposed fails to conform to the tenets of fair trial that accrue to accused persons under Articles 25(c) of the Constitution; an absolute right.xv.That, mitigation is an important facet of fair trial and the failure to individualize an appropriate sentence to the relevant aspects of the character and record of each defendant, and consider appropriate mitigating factors treated the offenders as a faceless, undifferentiated mass to be subjected to the blind infliction of set sentence thereby dehumanizing them.xvi.That, the dignity of the person is ignored if mandatory minimum sentence, which is not subject to a review is imposed without the individual's mitigation being considered, a formal equal penalty for unequally wicked crimes and criminals is not in keeping with the tenets of fair trial.xvii.That, if a magistrate does not have discretion to take into account mitigating circumstances it is possible to overlook some personal history and the circumstances of the offender which may make the sentence wholly disproportionate to the accused's criminal culpability. Consequently, failure to individualize the circumstances of an offence or offender may result in the undesirable effect of 'over punishing' the convict.xviii.That, a fair trial has many facets, and includes mitigation and, the right to appeal or apply for review by a higher Court as prescribed by law, by reason of its compulsory and automatic application, a mandatory minimum sentence cannot be the subject of review by a higher Court. Once a mandatory sentence is imposed, all that remains for a higher Court to review is whether the accused was found guilty of the crime for which the sentence is mandated. (Edwards v The Bahamas (Report No 48/01, April 4, 2001) which was decided by the Inter-American Commission on Human Rights).xix.That, the provision of Section 296[2] of the penal code violates Article 50(2)(q) of the Constitution as convicts under it are denied the right to have their sentence reviewed by a higher Court-their appeal is in essence limited to conviction only. There is no opportunity for a reviewing higher Court to consider whether the mandatory minimum sentence was an appropriate punishment in the circumstances of the particular offence or offender. This is further reveals that the right to justice is also fetteredxx.That, the scope of access to justice as enshrined in Article 48 is very wide. Courts are enjoined to administer justice in accordance with the principles laid down under Article 159 of the Constitution. Thus, with regards to access to justice and fair hearing, the State through the Courts, ensures that all persons are able to ventilate their disputes. Access to justice includes the right to a fair trial. If a trial is unfair, one cannot be said to have accessed justice. In this respect, when a convict's sentence cannot be reviewed by a higher Court, he is denied access to justice which cannot be justified in light of Article 48 of the Constitution.xxi.That, the provision of Section 296(2) of the penal code is also discriminate in nature; discriminate in the sense that the mandatory sentence gives differential treatment to a convict under that section, convicts under that section do not benefit from plea-bargaining, nor probation or community service orders.xxii.That, the mandatory nature of the sentence under Section 296(2) of the penal code is out of sync with the progressive Bill of Rights enshrined in our Constitution specifically; Articles 25 (c), 27, 28, 48 and 50 (1) and (2)(q). That section therefore cannot stand, particularly, in light of Article 19 (3) (a) of the Constitution which provides that the rights and fundamental freedoms in the Bill of Rights belong to each and every individual and are not granted by the State, and in light of Article 20 (1) and (2) which provide that the Bill of Rights applies to all law and binds all state organs and all persons and every person shall enjoy this rights and fundamental freedoms in the Bill of Rights to the greatest extent consistent with the nature of rights or freedom of right.xxiii.That, equality before the law Courts, tribunals and equal protection of the law is a fundamental right.xxiv.That, the right to have one's cause heard irrespective of its ultimate success is of paramount importancexxv.There is entitlement to a right to an effective remedy meaning one which is capable of enforcement with a leaning towards conferring of a right.xxvi.That, the sole purpose of enforcement of human rights is for purposes of preservation of the human dignity and enable the offending human being realize the full potential of himself/herself as a human being.xxvii.That, as found by judges in the persuasive authority of Reyes Versus the Queen [2002] 2AC 235 a decision of the Privy Council page 245-256 the call both at the international level as well as the Municipal level is for the Courts to interpret the said bill of Rights broadly and liberally in order to give effect to the enforcement of the right with an interpretation which favours the enjoyment of that is alleged to have been breached or has been threatened to be breached.xxviii.That, the interpretation should also bear in mind the need to observe respect and protect the dignity of the individual.xxix.That, may the honourable Court be pleased to grant a declaration that the constitutional rights of the Petitioner to a fair trial were violated when he was denied an opportunity to present his defence witness.xxx.That, may the honourable Court be pleased to grant a declaration that the constitutional rights of the Petitioner to equal protection and equal benefit of the law Article 27(1), freedom from discrimination Article 27(4) and right to access justice (Article 48) were also violated.xxxi.That, may the honourable Court be pleased to make no order as to costs in the present Petition for I am a prisoner and a pauper and thus prays that such costs be waived. Decision 4.This Application by the Applicant for this Court to hear the issue on sentence has been considered and found to be res judicata for reason that on 19th March 2026 the Court ruled as follows:a.As the Applicant's death sentence imposed by the Trial Court was indefinite sentence, Section 333(2) of the Criminal Procedure Code, Cap 75 (Laws of Kenya) was inapplicable. However, as the same was reviewed to a definite sentence by the High Court, it became a definite sentence and the said Section ought to have appliedb.Be that as it may, a perusal of the decision in Petition No 38 of 2019 cited as Lawrence Chamwada vs Republic [2020] KEHC 4559 (KLR), indicated that Musyoka J rendered himself as follows: - "In the spirit 'of Francis Karioko Muruatetu & Another vs Republic [2017] eKLR, I shall quash the sentence of death that was imposed on the Petitioner by the trial Court, and confirmed by the High Court. I shall substitute that sentence with one of thirty (30) years imprisonment, to run from the date of conviction on 31st January 2014. It is so ordered.c.As the Learned Judge had pronounced himself as to when the sentence should run, this Court could not sit on appeal or review of his decision as the Court he presided over had equal jurisdiction to this Court.d.For the foregoing reasons, the upshot of this Court's decision was that the Applicant’s application that was dated 14th May 2024 and filed on 27th May 2024 was not merited and the same be and is hereby dismissed. 5.The doctrine of res judicata which is applied more prominently under civil law within the provision of Section 7 of the CPA is also mutatis mutandis applicable to the branch of criminal law. Res judicata rule is said to originate from the Roman civil law Expedit rei publicae ut sit finis litium it is for the public good that there be an end of litigation. The main elements of res judicata are also found in our Civil Procedure Act Section 7:No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.Explanation. — (1) The expression "former suit" means a suit which hasbeen decided before the suit in question whether or not it was instituted before it.Explanation. — (2) For the purposes of this section, the competence of a Court shall be determined irrespective of any provision as to right of appeal from the decision of that Court.Explanation. — (3) The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other.Explanation. — (4) Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.Explanation. — (5) Any relief claimed in a suit, which is not expressly granted by the decree shall, for the purposes of this section, be deemed to have been refused.Explanation. — (6) Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating. 6.In light of the foregoing the Court lacks the jurisdiction to reopen the proceedings on sentence as initiated by the Applicant. The evidence is very clear that the same issues now being filed afresh have been re-litigated in Kakamega HCCRA No. 53 of 2015, Kakamega Petition No. 38 of 2018 and Petition No. 32 of 2019. There is nothing new to adjudicate on sentence and unfortunately so the application does not fall within the scope of Article 50(6)(a)(b) of the Constitution. The same is therefore dismissed for want of merit under Section 382 of the Criminal Procedure Code. DATED AND DELIVERED AT VIHIGA VIA CTS THIS 11TH DAY OF JUNE 2026……………………………….……..R. NYAKUNDIJUDGE