https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11359

**REPUBLIC OF KENYA** **IN THE HIGH COURT AT NYERI** **CRIMINAL REVISION NO. E187 OF 2024** **DAVID MAINA NJOROGE …………….………..………….…… APPLICANT** **VERSUS** **REPUBLIC………………………………………..……….…….RESPONDENT** **RULING** 1. This is a Ruling over an undated application filed on 16.06.2024 seeking the review of death sentence/life imprisonment imposed on the Applicant by Hon. D. Ogembo (SPM) and the subsequent appeal to this court, (Wakiaga, J Ngaah, J). It is based on decisions of the High Court and Court of Appeal, [**Manyeso v Republic** [2023] KECA 827 (KLR)](https://new.kenyalaw.org/akn/ke/judgment/keca/2023/827/eng%402023-07-07) (P Nyamweya, JW Lessit & GV Odunga, JJA], [Nyambura v Republic [2023] KEHC 1730 (KLR)](https://new.kenyalaw.org/akn/ke/judgment/kehc/2023/1730/eng%402023-02-23), [Muya J.] 2. The petitioner was arrested on 16.07.2008 and charged together with another David Maina Kingori with robbery with 2 counts of robbery with violence contrary to section 296(2) of the Penal Code. In respect to count 1, the particulars of the offence were that on 16.07.2008, at Munaini village, within Nyeri District of Central Province, jointly with others not in court, with others before the court, while being armed with dangerous weapon, namely pangas robbed Elisheba Wangari Muriitihi cash of Ksh. 20,000/=, a mobile phone make Nokia, serial number, 353648012460134 all valued at Ksh. 23,500/= and at the same time immediately before or immediately after the time of such robbery, killed Elisheba Wangari Muriitihi. 3. In count 2, the particulars of the offence were that on 16.07.2008, at Munaini village, within Nyeri District of Central Province, jointly with others not in court, with others before the court, while being armed with dangerous weapon, namely pangas robbed virginia Muthoni cash of Ksh. 100/=, a mobile phone make Samsung N700, serial number, 354363002568859, all valued at Ksh. 6,500/= and at the same time immediately before or immediately after the time of such robbery used personal violence on Virginia Muthoni. 4. He was tried and sentenced to death on 24.02.2012 by the Hon. D. Ogembo, SRM, as he then was. In sentencing the applicant, the trial court expressly considered his mitigation. However, his mitigation was, in substance, devoid of any mitigating factors as the applicant simply indicated that he was waiting for the court’s decision. On the other hand, the co-accused tendered mitigation which the court duly considered. The court further took into account the gravity of the offence and the consequences thereof, noting that a human life had been lost. . 1. He appealed to the High Court on both sentence and conviction vide Nyeri HCCRA 39 of 2012. The High Court found the appeal lacking in merit. In the decision reported as [**David Maina Njoroge & another v Republic** [2014] KEHC 2910 (KLR)](https://new.kenyalaw.org/akn/ke/judgment/kehc/2014/2910/eng%402014-09-19), this court, Wakiaga, J Ngaah, J posited as follows: In the issue of the evidence of minor witnesses we note that the trial court did not conduct *voire dire* as is required in law and that it is their evidence which ought to have been corroborated by the evidence of P.W.1. However, having analyzed the evidence tendered we are of the considered view that even in the absence of the evidence of the minors the appellants convictions were still safe and that the same suffered no prejudice by the omission on the part of the magistrate to conduct voice dire. In the final analysis we find that the prosecution case against the appellants was proved beyond reasonable doubt and that their conviction was safe and would therefore not interfere with the trial courts finding on fact. 1. The appellant indicated he had appealed but had never received communication from the Court of Appeal. He maintained that he had been trained sufficiently in different fields. He now seeks mercy and justice from the court. He served a total of 12 years from arrest until filing of the application. He sought for a declaration that he had served sufficient sentence, and determined a proper sentence after consideration of mitigating factors. He prayed that the court leans on mercy and pity rather than censure. Submissions 1. The applicant filed submissions on 31.10.2024. He indicated that he was charged with two counts of robbery with violence. He posited that this court has power under Article 165 to right the wrongs, interpret the constitution and any Acts. He falsely claimed that both appeals have been conclusively heard and determined. Reliance was placed on several decisions that I cannot find in the Kenya Law Reports. 1. However, he indicated that he did not contest the merits and demerits of the case in the courts. He prayed that the court exercises mercy and pity on him as he had been in prison for over 18 years. He offered to utilize the remainder of his life to usefully teach the youth the painful lessons he has learnt. He also prayed to invoke section 333(2) of the penal code. He also addressed the mandatory nature of the death sentence. He stated that the society may never understand him and the reforms he had gone through. He relied on a South African case of **S v Pistorius (CC113/2013) [2016] ZAGPPHC 724 (6 July 2016),** where the High Court of South Africa, sitting in Pretoria posited, while addressing the sentence of Oscar Leonard Carl Pistorius as follows: It is my view that it must be one of the most difficult things for any accused to have to face the victims of his crime and to apologise. It is highly improbable, therefore, that the accused would persist in his request to meet the parents of the deceased and ask for forgiveness, if he was not genuinely remorseful. Counsel for the state submitted further that in the event the court found that substantial and compelling circumstances exist justifying a lesser sentence than the prescribed minimum sentence, the court still ought to impose a very long term of imprisonment on the basis that the crime the accused was found guilty of bordered on *dolus directus*. I disagree with this submission. There is no suggestion in the judgment of the Supreme Court of Appeal that this is the case. The finding of the Supreme Court of Appeal was that the accused had intent in the form of dolus eventualis. It is this finding that this court has to bear in mind and use as a basis to impose a sentence afresh 1. He also relied on the decision in **Manyeso v Republic [2023] KECA 827 (KLR),** which I shall address later in the Ruling. He prayed that the application, which he christened a petition be allowed. 2. The respondent filed submissions posting that the petitioner has filed a petition before this court seeking re-sentencing. The petitioner relies on inter alia the court of appeal decision in **Manyeso v Republic [supra],** which declared life sentence unconstitutional and sections 216, 329 and 333(3) of the Criminal Procedure Code. 3. They submitted that the Court of Appeal decision in *Manyeso v Republic [supra,* has since been overtaken by events since the Supreme Court has already upheld the constitutionality of life imprisonment in the same matter upon appeal. They relied on Article 163(7) of the Constitution, as to the binding nature of the Supreme Court decisions upon courts below, which provides as follows: *All courts, other than the Supreme Court, are bound by the decisions of the Supreme Court.* 1. Further reliance was placed on the case of [*Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) [2024] KESC 34 (KLR)*](https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/34/eng%402024-07-12)*,* where the Supreme Court held as follows: 54. As we have stated before in several cases, unlike in other jurisdictions, Kenya's stare decisis principle is a constitutional obligation meant to enhance the legal system's predictability and certainty. In the case of [Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others](https://kenyalaw.org/caselaw/cases/view/98071/%22%20%5Ct%20%22_blank), SC Petition No 2B of 2014 [2014] eklr, we stated that article 163(7) of the [Constitution](https://new.kenyalaw.org/akn/ke/act/2010/constitution/eng%402010-09-03) is the embodiment of the time-hallowed common law doctrine of stare decisis. It holds that the precedents set by this court are binding on all other courts in the land. It is imperative for all courts bound by decisions to rigorously uphold their authority, ensuring the effective functioning of the administration of justice. Without this steadfast and uniform commitment, the legal system risks ambiguity, eroding public trust, and causing disorder in the administration of justice. 1. They submitted that the Court is bound by the principles enunciated by the Supreme Court in [*Republic v Manyeso [2025] KESC 16 (KLR)*](https://new.kenyalaw.org/akn/ke/judgment/kesc/2025/16/eng%402025-04-11)*,* [*Muruatetu & another v Republic; Katiba Institute & 5 others (Amicus Curiae) [2017] KESC 2 (KLR)*](https://new.kenyalaw.org/akn/ke/judgment/kesc/2017/2/eng%402017-12-14)*,* [*Muruatetu & another v Republic; Katiba Institute & 5 others (Amicus Curiae) [2021] KESC 31 (KLR)*](https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/31/eng%402021-07-06)*, (Muruatetu directions),* They submitted that in the case of Muruatetu the Supreme Court was clear that Sentence re-hearing is only available to persons subjected to the mandatory death penalty for the offence of murder under Section 203 as read with 204 of the Penal Code. 2. It was further submitted that the Supreme Court in the Muruatetu Directions clarified that the decision in [*Muruatetu & another v Republic; Katiba Institute & 5 others (Amicus Curiae) [2017] KESC 2 (KLR)*](https://new.kenyalaw.org/akn/ke/judgment/kesc/2017/2/eng%402017-12-14)*,* was confined to the mandatory death sentence prescribed for murder and did not extend to other offences. They therefore contended that the applicant could not invoke the Muruatetu jurisprudence as a basis for sentence review or re-sentencing in the present case. Reliance was placed on the Supreme Court decision. 3. They augmented their submissions with the decision in [**Republic v Ayako [2025] KESC 20 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/kesc/2025/20/eng%402025-04-11)**,** where the Supreme Court guided as follows: In the [Muruatetu II](https://kenyalaw.org/akn/ke/judgment/kesc/2021/31%22%20%5Ct%20%22_blank) case we reiterated that the rationale in the [Muruatetu I](https://kenyalaw.org/akn/ke/judgment/kesc/2017/2%22%20%5Ct%20%22_blank) case was only applicable to the mandatory death penalty for the offence of murder under section 203 as read with 204 of the [Penal Code](https://kenyalaw.org/akn/ke/act/1948/81). Further, we disabused the notion that the rationale could be applied as is to other offences with a mandatory or minimum sentence. 53. In the [Republic v Mwangi](https://kenyalaw.org/akn/ke/judgment/kesc/2024/34) case, we explained as follows: “(52)We therefore find that in this matter the Court of Appeal did offend the principle of stare decisis. Notably, we observe that the Court of Appeal determined that the ratio decidendi in the [Muruatetu](https://kenyalaw.org/akn/ke/judgment/kesc/2017/2%22%20%5Ct%20%22_blank) case on the unconstitutionality of mandatory sentences could be applied mutatis mutandis to the mandatory nature of minimum sentences provided for in the [Sexual Offences Act](https://kenyalaw.org/akn/ke/act/2006/3). In doing so, and with respect, the Court of Appeal failed to abide by the clear principles provided in both the Muruatetu case and the [Muruatetu](https://kenyalaw.org/akn/ke/judgment/kesc/2017/2%22%20%5Ct%20%22_blank) directions in this instance.” 1. It was submitted that the Petitioner was accorded an opportunity to mitigate at the trial court and the issue was not raised as a ground of appeal before the High Court. Reliance was placed on sections 216 and 329 of the Criminal Procedure Code. Section 216 of the Criminal Procedure Code provides as follows: **The court may, before passing sentence or making an order against an accused person under section 215, receive such evidence as it thinks fit in order to inform itself as to the sentence or order properly to be passed or made.** 1. Section 329 is the High Court equivalent of section 216. It is unnecessary to set it out, the trial having been undertaken in the lower court, where section 216 applies. Reliance was placed on the case of [**Sango Mohamed Sango & another v Republic [2015] KECA 178 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/keca/2015/178/eng%402015-12-04), where the court of appeal [Makhandia, Ouko & M’Inoti JJ.A.] posited as follows: Sections 216 and 329 of the Criminal Procedure Code empower the trial court, before passing sentence to receive such evidence as it thinks fit in order to inform itself as to the proper sentence to be passed. Although the above provisions are couched in permissive terms, this Court has held over time that it is imperative for the trial Court to afford an accused person an opportunity to mitigate before he or she is sentenced, even in offences where the prescribed sentence is death. Thus for example, in AMOS CHANGALWA JUMA V. REPUBLIC [2009] EKLR this Court stated: “Before we conclude this judgment, we must say something about the manner the learned Judge dealt with the sentence. We have reproduced the concluding paragraph of the learned Judge’s judgment and it is clear that the learned Judge sentenced the appellant to death in his main judgment without recording mitigating factors, if any. This was clearly improper. As we have stated previously in other judgments, after the judgment is read out and in case of a conviction, the court must take down mitigating circumstances from the accused person (or his counsel) before sentencing him/her. This obtains even in the cases where death penalty is mandatory. The reasons for requirement are clear in that when the matter goes to appeal as this matter has come before us, there are chances that the appellate Court may reduce the offence to a lesser charge such as manslaughter, grievous harm or assault. In such circumstances, mitigating factors would become relevant in assessing appropriate sentence to be awarded. Secondly, even if the matter does not come to this Court on appeal, or if it comes to this Court and the appeal is dismissed, such mitigating factors would still be required when the matter is placed before another body for clemency. Thirdly, matters such as age, pregnancy in cases of women convicts may well affect the sentence. It is thus necessary that mitigating factors be recorded even in cases of mandatory death row sentence.” (See also, HENRY KATAP KIPKEU V. REPUBLIC, CR. APP. NO. 295 OF 2008 (ELDORET), and DORCAS JEBET KETTER & ANOTHER V. R. CR. APP. NO. 10 OF 2012. From the record, it is sufficiently clear that the appellants were offered an opportunity to mitigate before sentencing and that they indeed presented their mitigation statements as required by the Criminal Procedure Code, which were considered by the court before it, meted out sentences. 1. They submitted that, if this Court grants the Petitioner a determinate sentence it will offend the doctrine of Separation of Powers. The doctrine of the separation of powers presupposes the existence of three main branches of government, namely, Executive, Legislature, and Judiciary, each of them vested with distinct constitutional powers. They relied on the case of [*Trusted Society of Human Rights Alliance v Attorney General & 2 others; Matemu (Interested Party); Kenya Human Rights Commission & another (Amicus Curiae) [2012] KEHC 2480 (KLR*)](https://new.kenyalaw.org/akn/ke/judgment/kehc/2012/2480/eng%402012-09-20), to elucidate the importance of separation of powers. 1. They further placed reliance on the case of [**Muruatetu & another v Republic; Katiba Institute & 5 others (Amicus Curiae) [2017] KESC 2 (KLR**)](https://new.kenyalaw.org/akn/ke/judgment/kesc/2017/2/eng%402017-12-14), where the Supreme Court guided as follows: We recognize that although the Judiciary released elaborate and comprehensive Sentencing Policy Guidelines in 2016, there are no specific provisions for the sentence of life imprisonment, because it is an indeterminate sentence. Nevertheless, we are in agreement with the High Court decision in [*Jackson Wangui*](https://kenyalaw.org/akn/ke/judgment/kehc/2012/3013), supra, which found that it is not for the court to define what constitutes a life sentence or what number of years must first be served by a prisoner on life sentence before they are considered on parole. This is a function within the realm of the Legislature. 95.We also acknowledge that in Kenya and internationally, sentencing should not only be used for the purpose of retribution, it is also for the rehabilitation of the prisoner as well as for the protection of civilians who may be harmed by some prisoners. We find the comparative jurisprudence with regard to the indeterminate life sentence is compelling. We find that a life sentence should not necessarily mean the natural life of the prisoner; it could also mean a certain minimum or maximum time to be set by the relevant judicial officer along established parameters of criminal responsibility, retribution, rehabilitation and recidivism. 96.We therefore recommend that Attorney General and Parliament commence an enquiry and develop legislation on the definition of ‘what constitutes a life sentence’; this may include a minimum number of years to be served before a prisoner is considered for parole or remission, or provision for prisoners under specific circumstances to serve whole life sentences. This will be in tandem with the objectives of sentencing. 1. Further reliance was placed on the case of [**Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) [2024] KESC 34 (KLR**)](https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/34/eng%402024-07-12), where the Supreme Court stated as follows: 67. We must also reaffirm that, although sentencing is an exercise of judicial discretion, it is Parliament and not the Judiciary that sets the parameters of sentencing for each crime in statute. As such, striking down a sentence provided for in Statute, must be based not only on evidence and sound legal principles but on an in-depth consideration of public interest and the principles of public law that informed the making of that specific law. A judicial decision of that nature cannot be based on private opinions, sentiments, sympathy or benevolence. It ought not to be arbitrary, whimsical or capricious. However, where a sentence is set in Statute, the Legislature has already determined the course, unless it is declared unconstitutional, based on sound principles and clear guidelines, upon which the Legislature should then act. Suffice to say, where Parliament enacts legislation, the Judicial arm should adjudicate disputes based on the provisions of the law. However, in the special circumstances of a declaration of unconstitutionality, the process is reversed. 68.This is why, even in the *[Muruatetu](https://kenyalaw.org/akn/ke/judgment/kesc/2017/2%22%20%5Ct%20%22_blank)* case, this court was keen to still defer to the Legislature as the proper body mandated to legislate. While the courts have the mandate to interpret the law and where necessary strike out a law for being unconstitutional, this mandate does not extend to legislation or repeal of statutory provisions. In that regard, we echo with approval the words of the High Court in the case of [*Trusted Society of Human Rights v Attorney-General and others*](https://kenyalaw.org/akn/ke/judgment/kehc/2012/2480), High Court Petition No 229 of 2012; [2012] eklr, at paragraphs 63-64 where it held as follows:“Although the Kenyan [*Constitution*](https://new.kenyalaw.org/akn/ke/act/2010/constitution/eng%402010-09-03) contains no explicit clause on separation of powers, the Montesquieuian influence is palpable throughout the foundational document, the [*Constitution*](https://new.kenyalaw.org/akn/ke/act/2010/constitution/eng%402010-09-03), regarding the necessity of separating the Governmental functions. The [*Constitution*](https://new.kenyalaw.org/akn/ke/act/2010/constitution/eng%402010-09-03) consciously delegates the sovereign power under it to the three branches of Government and expects that each will carry out those functions assigned to it without interference from the other two.”We reiterate the above exposition of the law and the answer to the two questions under consideration is that, unless a proper case is filed and the matter escalated to us in the manner stated above, a declaration of unconstitutionality cannot be made in the manner the Court of Appeal did in the present case. 1. They submitted that Article 94 of the Constitution vests legislative authority in Parliament, including the power to enact laws, create offences, and prescribe the penalties attendant thereto. Article 94(1) provides as follows: 2. *The legislative authority of the Republic is derived from the people and, at the national level, is vested in and exercised by Parliament.* 3. On the other hand, Article 165(3)( of the Constitution grants the High Court jurisdiction to determine questions concerning the interpretation of the Constitution and the constitutionality of statutes. The article provides as follows: (3)Subject to clause (5), the High Court shall have- * + - 1. unlimited original jurisdiction in criminal and civil matters; 2. jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened; 3. jurisdiction to hear an appeal from a decision of a tribunal appointed under this Constitution to consider the removal of a person from office, other than a tribunal appointed under Article 144; 4. (d)jurisdiction to hear any question respecting the interpretation of this Constitution including the determination of- The question whether any law is inconsistent with or in contravention of this Constitution; the question whether anything said to be done under the authority of this Constitution or of any law is inconsistent with, or in contravention of, this Constitution; … --- * + - 1. Any other jurisdiction, original or appellate, conferred on it by legislation. 1. It was submitted that the Court's role is therefore limited to interpreting and adjudicating upon the constitutionality of legislation. It follows that the Court cannot arrogate to itself the legislative function of amending statutes, as to do so would offend the doctrine of separation of powers. In the present case, the petitioner seeks the substitution of a sentence of life imprisonment with a determinate term of years. Such an order would, in effect, require the Court to amend the Penal Code by replacing a legislatively prescribed sentence with one not provided for by law, without following the constitutionally mandated legislative process. 2. The Court should decline that invitation, since to accede to the petitioner's request would amount to an impermissible encroachment upon the legislative mandate of Parliament and would undermine the doctrine of separation of powers that underpins Kenya's constitutional order. 3. It was submitted that the death sentence which was imposed by the trial court and affirmed by the High Court should not be interfered with. Analysis 1. The issue is whether the Applicant’s sentence should be reviewed to take into consideration the mitigation. However, parties went on a frolic of their own and departed from the core of the case. The applicant may be serving a life sentence. However, it is not a judicial sentence. The same was imposed on the applicant administratively. This court can only then deal with the judicial sentence, that is, death sentence. I agree with the state that the court cannot review an administrative sentence by the executive. They had relied on the case of [**Trusted Society of Human Rights Alliance v Attorney General & 2 others; Matemu (Interested Party); Kenya Human Rights Commission & another (Amicus Curiae) [2012] KEHC 2480 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/kehc/2012/2480/eng%402012-09-20), to elucidate the importance of separation of powers. 14. The doctrine of separation of powers was alive and well in Kenya. When a matter was textually committed to one of the coordinate arms of government, the courts had to defer to the decisions made by those other coordinate branches of government. The Constitution consciously distributed power among the three co-equal branches of government to ensure that power was not concentrated in a single branch. That design was fundamental to Kenya’s system of government. It ensured that none of the three branches of government usurped the authority and functions of the others. 15. Although the Kenyan Constitution contained no explicit clause on separation of powers, the Montesquieuan influence was palpable throughout the Constitution, regarding the necessity of separating the governmental functions. The Constitution consciously delegated the sovereign power under it to the three branches of government and expects that each would carry out those functions assigned to it without interference from the other two. 16. The courts had to show deference to the independence of the Legislature as an important institution in the maintenance of Kenya’s constitutional democracy as well as accord the Executive sufficient latitude to implement legislative intent. The courts had an interpretive role including the last word in determining the constitutionality of all governmental actions. That was an incidence of the doctrine of separation of powers. 1. The appellant did not appeal on the severity of sentence and no decision was made in that respect. The appellant proceeded to appeal to the Court of Appeal vide Nyeri CACRA 104 of 2014. The appeal was withdrawn on 16.09.2020. The court deemed it dismissed under rule 68(1) of the Court of Appeal Rules, 2010. The rules were since repealed on 08.07.2022 vide rule 122 of the Court of Appeal Rules, 2022. The equivalent rule now is Rule 70(1) of the Court of Appeal Rules. The repealed rule 68 provided as follows: (1)An appeal may be withdrawn at any time before hearing by notice in writing to the Registrar signed by the appellant, and upon such notice being given the appeal shall be deemed to have been dismissed. (2)When any appeal is withdrawn, the Registrar shall forthwith notify the respondent and the registrar of the superior court. (3)An appeal which has been withdrawn may be restored by leave of the Court on the application of the appellant if the Court is satisfied that the notice of withdrawal was induced by fraud or mistake and that the interests of justice require that the appeal be heard. (4)An appeal may be withdrawn by an informal application in court at any time before the hearing is concluded. 1. There was no appeal on sentence in both appeals. The only appeal on sentence related to suffering two death sentences. The ground that was addressed by the court was number 6 as follows: *6. The learned trial Magistrate erred in law in sentencing the appellant to suffer death in the two charges which sentence was illegal and erroneous. Prejudice was occasioned to the appellant.* 1. The court dealt with this by allowing the same in the following terms. **We however find that the trial court fell into error in sentencing the appellants to death twice as one can only suffer death once. We would therefore put in abeyance the death sentence on count II.** 1. However, he was given an opportunity to mitigate, but he chose not to take advantage of it. The right to mitigation was therefore not denied; rather, but not taken up. As the saying goes, opportunities do not always come twice. The Spanish expression *“La ocasión se presenta solo una vez en la vida”* and the French maxim *“Les occasions ne se présentent pas deux fois”* aptly convey the point that a party who elects not to seize an opportunity when it is presented cannot later complain that the opportunity was unavailable. 2. However, in this case, the court has taken into account the applicant's age at the time of the offence and his relatively low level of education. The court has also considered the mitigation advanced by the applicant, namely that he is remorseful, has reflected upon his actions, has forgiven himself, and seeks forgiveness from God. Further, the applicant has been in continuous custody for a considerable period. As at the date of his submissions in 2024, he had served over 18 years in custody. As of today, he has been incarcerated for approximately 20 years. This will be weighted against the evidence on record. 3. Before considering whether the sentence imposed remains appropriate in light of the foregoing circumstances, it is necessary to clarify the current state of the law regarding sentence re-hearings and the death penalty. The court will therefore first address the prevailing legal position before determining the appropriate sentence in this matter. 4. The decision of [**Manyeso v Republic** [2023] KECA 827 (KLR)](https://new.kenyalaw.org/akn/ke/judgment/keca/2023/827/eng%402023-07-07) which was relied on in the submissions has since been overturned by the by the Supreme Court and reported as [*Republic v Manyeso [2025] KESC 16 (KLR)*](https://new.kenyalaw.org/akn/ke/judgment/kesc/2025/16/eng%402025-04-11)[PM Mwilu, DCJ & VP, MK Ibrahim, SC Wanjala, N Ndungu & I lenaola, SCJJ], where the Supreme Court in that matter held as follows: 62. In the [Muruatetu](https://kenyalaw.org/akn/ke/judgment/kesc/2021/31%22%20%5Ct%20%22_blank) directions, this court pronounced itself on the application of the ratio in the Muruatetu case to other statutes prescribing mandatory sentences as follows: 10. It has been argued in justifying this state of affairs, that, by paragraph 48 of the Judgement in this matter, or indeed the spirit of the Judgement as a whole, the court has outlawed all mandatory and minimum sentence provisions; and that although Muruatetu specifically dealt with the mandatory death sentence in respect of murder, the decision's expansive reasoning can be applied to other offenses that prescribe mandatory or minimum sentences. Far from it. 11. The ratio decidendi in the decision was summarized as follows:" 69.Consequently, we find that section 204 of the [Penal Code](https://kenyalaw.org/akn/ke/act/1930/10) is inconsistent with the [Constitution](https://kenyalaw.org/akn/ke/judgment/kesc/2017/2) and invalid to the extent that it provides for the mandatory death sentence for murder. For the avoidance of doubt, this decision does not outlaw the death penalty, which is still applicable as a discretionary maximum punishment”. We therefore reiterate that, this court’s decision in Muruatetu, did not invalidate mandatory sentences or minimum sentences in the [Penal Code](https://kenyalaw.org/akn/ke/act/1930/10), the [Sexual Offences Act](https://kenyalaw.org/akn/ke/act/2006/3) or any other statute.” 14. It should be apparent from the foregoing that Muruatetu cannot be the authority for stating that all provisions of the law prescribing mandatory or minimum sentences are inconsistent with the [Constitution](https://kenyalaw.org/akn/ke/judgment/kesc/2017/2). It bears restating that it was a decision involving the two petitioners who approached the court for specific reliefs. The ultimate determination was confined to the issues presented by the petitioners, and as framed by the court.” 1. There is a long list of cases from the Supreme Court on the determinate sentence vis-à-vis life sentence. Indeed the entire gamut relating to life sentences, sexual offences have been overturned and the Supreme Court has completely obliterated any debate on life sentence in sexual offences. In the case of [**Republic v Mwangi**; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) [2024] KESC 34 (KLR)](https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/34/eng%402024-07-12), the Supreme Court held as follows: This is why, even in the [Muruatetu](https://kenyalaw.org/akn/ke/judgment/kesc/2017/2%22%20%5Ct%20%22_blank) case, this court was keen to still defer to the Legislature as the proper body mandated to legislate. While the courts have the mandate to interpret the law and where necessary strike out a law for being unconstitutional, this mandate does not extend to legislation or repeal of statutory provisions. In that regard, we echo with approval the words of the High Court in the case of [Trusted Society of Human Rights v Attorney-General and others](https://kenyalaw.org/akn/ke/judgment/kehc/2012/2480), High Court Petition No 229 of 2012; [2012] eklr, at paragraphs 63-64 where it held as follows: “Although the Kenyan [Constitution](https://new.kenyalaw.org/akn/ke/act/2010/constitution/eng%402010-09-03) contains no explicit clause on separation of powers, the Montesquieuan influence is palpable throughout the foundational document, the [Constitution](https://new.kenyalaw.org/akn/ke/act/2010/constitution/eng%402010-09-03), regarding the necessity of separating the Governmental functions. The [Constitution](https://new.kenyalaw.org/akn/ke/act/2010/constitution/eng%402010-09-03) consciously delegates the sovereign power under it to the three branches of Government and expects that each will carry out those functions assigned to it without interference from the other two.” We reiterate the above exposition of the law and the answer to the two questions under consideration is that, unless a proper case is filed and the matter escalated to us in the manner stated above, a declaration of unconstitutionality cannot be made in the manner the Court of Appeal did in the present case. 1. Save for questions relating to mitigation and the exercise of judicial discretion in instances where a life sentence is not mandatory, such as under section 20(1) of the Sexual Offences Act, the court's hands are largely tied by the applicable statutory framework and binding precedent. Fortunately for the parties, this is not the case in this matter. The sentence meted out by the courts was a death penalty. It is the sentence the courts have power to deal with. It is irrelevant whether a sentence has already been served or that administratively it is commuted. 2. Both counts on which the applicant was convicted related to the offence of robbery with violence contrary to section 296(2) of the Penal Code. The section provides as follows: **(2) If the offender is armed with any dangerous or offensive weapon or instrument, or is in company with one or more other person or persons, or if, at or immediately before or immediately after the time of the robbery, he wounds, beats, strikes or uses any other personal violence to any person, he shall be sentenced to death.** 1. The death sentence is prescribed under section 296(2) of the Penal Code. The applicant contends that the sentence imposed upon him was unconstitutional on the ground that it did not afford him an effective opportunity to mitigate and failed to take into account the unique circumstances of both the offender and the offence. In support of his application, the applicant relied on Articles 22(1), 25(c), 27, 28 and 50(2)(p) of the Constitution of Kenya, 2010, as well as the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (the Mutunga Rules). He argues that the mandatory imposition of the death sentence infringed his constitutional rights, including the right to a fair trial, the right to equal protection and benefit of the law, and the right to human dignity. 2. Although the matter was presented as an application for review and is framed as a Notice of Motion, its substance discloses a constitutional challenge to the sentence imposed. The court is enjoined to look beyond the form of pleadings and consider their substance. In essence, the applicant seeks constitutional relief arising from the sentence imposed upon him and invites the court to reconsider that sentence in light of subsequent constitutional and jurisprudential developments. 3. The application therefore bears the character of a constitutional petition, notwithstanding the procedural form in which it was presented. The court will consequently determine the matter on the basis of the issues raised and the reliefs sought, rather than on the nomenclature adopted by the applicant. The overriding consideration is whether the applicant has established a constitutional or legal basis warranting the court's intervention in the sentence imposed. 4. Given that this is a criminal matter and bearing in mind the provisions of Article 25(c) of the Constitution, the court considers the manner in which the application was presented to be a defect of form rather than substance. Courts are enjoined to administer justice without undue regard to procedural technicalities and to give effect to constitutional rights whenever properly invoked. 5. The applicant's grievance concerns the constitutionality of the sentence imposed and the alleged violation of his right to a fair trial. In those circumstances, the court will not dismiss the application merely because it was framed as a Notice of Motion rather than a constitutional petition. The court shall instead determine the issues raised on their merits. Article 25 of the Constitution identifies certain fundamental rights and freedoms that shall not be limited under any circumstances. It provides as follows: *Despite any other provision in this Constitution, the following rights and fundamental freedoms shall not be limited-* * + - 1. *Freedom from torture and cruel, inhuman or degrading treatment or punishment;* 2. *Freedom from slavery or servitude;* 3. *The right to a fair trial; and* 4. *The right to an order of habeas corpus* 1. The phrase, despite any other provision in this Constitution means that any limitation placed in other 263 articles out of the 264 articles of the constitution, is subject to the rights enshrined under Article 25. It follows that in exercise of powers under the constitution, any organ, including the people must respect the right to a fair trial. The reenactment of the trial of Jesus where the crowd demanded for his fructification cannot be countenanced. It does not however mean that the right will be carried out in contravention of rights relating trial and *stare decis* under article 163(7) among others. 2. On the other hand, Article 22(1) of the Constitution provides as follows: *Every person has the right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened.* 1. The instant application is premised among others on Article 50 (2) (q) of the Constitution. Discretion in sentencing is a matter of justice and pertains to fair trial. Therefore, a person who suffers this deprivation may claim violation of the right to appropriate or less severe sentence - a principle embodied in the Constitution including article 50(2)(p) of the Constitution as follows: Every accused person has the right to a fair trial which includes the right: … to 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. 1. Re-sentencing merely provides an effective remedy to an injustice that may arise from a violation of a right or fundamental freedom. This was equally the view of this Court in **Michael Kathewa Laichena & Another -v- Republic (2018) eKLR** thus: **“ …by re-sentencing the petitioner, the High Court is merely enforcing and granting relief for what is in effect a violation caused by the imposition of the mandatory death sentence.’** 1. There is no straight jacket formula for sentencing an accused person on proof of crime. As was held by the Court of Appeal in **Thomas Mwambu Wenyi Vs Republic (2017) eKLR** citing the decision of the Supreme Court of India in *Alister Anthony Pereira Vs State of Mahareshtra* at paragraph 70-71: **“**Sentencing is an important task in the matter of crime. One of the prime objectives of the criminal law is imposition of appropriate, adequate, just and proportionate sentence commensurate with the nature and gravity of crime and the manner in which the crime is done. There is no straight jacket formula for sentencing an accused person on proof of crime. The courts have evolved certain principles: twin objective of sentencing policy is deterrence and correction. What sentence would meet the ends of justice depends on the facts and circumstance of each case and the courts must keep in mind the gravity of the crime, motive for the crime, nature of the offence and all other attendant circumstances. The principle of proportionality in sentencing a crime doer is well entrenched in criminal jurisprudence. As a matter of law, proportion between crime and punishment bears most relevant influence in determination of sentencing the crime doer. The court has to take into consideration all aspects including social interest and consciousness of the society for award of appropriate sentence. 1. In Muruatetu II, the Supreme Court was also categorical that the guidelines in Muruatetu I applied only with respect to sentences of murder under Sections 203 and 204 of the Penal Code. The question of mandatory nature of the death penalty had not been raised. What is raised is mitigation in the case of *Francis Karioko Muruatetu & another v Republic; Katiba Institute & 5 others (Amicus Curiae) [2021] eklr (Muruatetu* II): In respect of other capital offences such as treason under Section 40(3) of the Penal Code, robbery with violence under section 296(2) of the Penal Code, and attempted robbery with violence under Section 297(2) of the Penal Code, 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 the decision in question could be reached. … All offenders who had been subject to the mandatory death penalty and desired to be heard on sentence were entitled to a re-sentencing hearing. Where an appeal was pending before the Court of Appeal, the High Court would entertain an application for re-sentencing upon being satisfied that the appeal had been withdrawn. 1. Therefore, the decision relating to the mandatory nature of the death penalty have been dealt with in respect to sentences of murder under Sections 203 and 204 of the Penal Code. The Supreme Court is yet to decide on the same in respect of robbery with violence. The question of the constitutionality of death sentence is settled with ramifications that death sentence is constitutional and a lawful sentence to mete out. In the case of Vinter and others v United Kingdom (Application nos. 66069/09, 130/10 and 3896/10) [2016] III ECHR 317 (9 July 2013), the European Court of Human Rights, held as follows: 111. It is axiomatic that a prisoner cannot be detained unless there are legitimate penological grounds for that detention. As was recognised by the Court of Appeal in *Bieber* and the Chamber in its judgment in the present case, these grounds will include punishment, deterrence, public protection and rehabilitation. Many of these grounds will be present at the time when a life sentence is imposed. However, the balance between these justifications for detention is not necessarily static and may shift in the course of the sentence. What may be the primary justification for detention at the start of the sentence may not be so after a lengthy period into the service of the sentence. It is only by carrying out a review of the justification for continued detention at an appropriate point in the sentence that these factors or shifts can be properly evaluated. 112. Moreover, if such a prisoner is incarcerated without any prospect of release and without the possibility of having his life sentence reviewed, there is the risk that he can never atone for his offence: whatever the prisoner does in prison, however exceptional his progress towards rehabilitation, his punishment remains fixed and unreviewable. If anything, the punishment becomes greater with time: the longer the prisoner lives, the longer his sentence. Thus, even when a whole life sentence is condign punishment at the time of its imposition, with the passage of time it becomes – to paraphrase Lord Justice Laws in *Wellington* – a poor guarantee of just and proportionate punishment (see paragraph 54 above). 1. The discretion to sentence permits a balanced and fair sentencing, which is a hallmark of enlightened criminal justice and proper consideration of the individual circumstances of each accused person is essential for substantive justice. In [*State vs. Tom, State v. Bruce*](https://kenyalaw.org/caselaw/cases/view/236167/%20http%3A/www.saflii.org/za/cases/ZASCA/1990/38.html) (1990) SA 802 (A), Smalberger, JA, writing for the majority of Supreme Court of South Africa, made the following pertinent observations about sentencing in general and mandatory sentences in particular: “The first principle is that the infliction of punishment is pre-eminently a matter for the discretion of the trial court ... That courts should, as far as possible, have an unfettered discretion in relation to sentence is a cherished principle which calls for constant recognition. Such discretion permits of balanced and fair sentencing, which is a hallmark of enlightened criminal justice. The second, and somewhat related principle, is that of the individualization of punishment, which requires proper consideration of the individual circumstances of each accused person. This principle too is firmly entrenched in our law... A mandatory sentence runs counter to these principles. (I use the term “mandatory sentence” in the sense of a sentence prescribed by the legislature which leaves the court with no discretion at all -either in respect of the kind of sentence to be imposed or, in the case of imprisonment, the period thereof.) It reduces the court's normal sentencing function to the level of a rubber stamp. It negates the ideal of individualization. The morally just and the morally reprehensible are treated alike. Extenuating and aggravating factors both count for nothing. No consideration, no matter how valid or compelling, can affect the question of sentence... Harsh and inequitable results inevitably flow from such a situation. Consequently, judicial policy is opposed to mandatory sentences...as they are detrimental to the proper administration of justice and the image and standing of the courts.” 1. A provision of law should not deprive the court of the use of its wise and beneficent discretion in a matter of life and death, without regard to the circumstances in which the offence was committed and, therefore, without regard to the gravity of the offence for this can only be regarded as harsh, unjust and unfair. The Court in [*Mithu Singh vs. State of Punjab*](https://indiankanoon.org/doc/590378/), 1983 AIR 473 stated as follows: “...a provision of law which deprives the court of the use of its wise and beneficent discretion in a matter of life and death, without regard to the circumstances in which the offence was committed and, therefore, without regard to the gravity of the offence, cannot but be regarded as harsh, unjust and unfair. It has to be remembered that the measure of punishment for an offence is not afforded by the label which that offence bears, as for example ‘Theft, Breach of Trust’ or ‘Murder’. The gravity of the offence furnishes the guideline for punishment and one cannot determine how grave the offence is without having regard to the circumstances in which it was committed, its motivation and its repercussions. The legislature cannot make relevant circumstances irrelevant, deprive the courts of their legitimate jurisdiction to exercise their discretion not to impose the death sentence in appropriate cases, compel them to shut their eyes to mitigating circumstances and inflict upon them the dubious and unconscionable duty of imposing a preordained sentence of death. Equity and good conscience are the hall-marks of justice. The mandatory sentence of death prescribed by section 303, with no discretion left to the court to have regard to the circumstances which led to the commission of the crime, is a relic of ancient history. In the times in which we live, that is the lawless law of military regimes. We, the people of India, are pledged to a different set of values. For us, law ceases to have respect and relevance when it compels the dispensers of justice to deliver blind verdicts by decreeing that no matter what the circumstances of the crime, the criminal shall be hanged by the neck until he is dead.” 1. It is beyond peradventure that the cardinal duty of this court does not rest until it ensures that the sentences so prescribed are imposed in accordance with the Constitution. In the Constitutional Court of Uganda’s decision in [**Susan Kigula & 417 Others vs. Attorney General**](https://ulii.org/ug/judgment/constitutional-court-uganda/2005/8), Const. App. No. 3 of 2006 the Court observed thus: **“The legislature has all the powers to make laws including prescribing sentences. But it is the duty of the courts to ensure that the sentences so prescribed are imposed in accordance with the Constitution.”** 1. The court also notes the purpose and objectives of sentencing as stated in the Judiciary Sentencing policy should be commensurate and proportionate to the crime committed and the manner in which it was committed. The sentencing should be one that meets the end of justice and ensures that the principles of proportionality, deterrence and rehabilitation are adhered to. The objectives of sentencing as set out in the 2023 Sentencing Guidelines are as follows: - *“1.3.1 Sentences are imposed to meet the following objectives. There will be instances in which the objectives may conflict with each other – insofar as possible, sentences imposed should be geared towards meeting the objectives in totality.* * + 1. *Retribution*: To punish the offender for their criminal conduct in a just manner. 2. *Deterrence*: To deter the offender from committing a similar or any other offence in future as well as to discourage the public from committing offences. 3. *Rehabilitation*: To enable the offender to reform from his/her criminal disposition and become a law-abiding person. 4. *Restorative justice*: To address the needs arising from the criminal conduct such as loss and damages sustained by the victim or the community and to promote a sense of responsibility through the offender’s contribution towards meeting those needs. Community 5. *Protection*: To protect the community by removing the offender from the community thus avoiding the further perpetuation of the offender’s criminal acts. 6. *Denunciation*: To clearly communicate the community’s condemnation of the criminal conduct. 7. *Reconciliation*: To mend the relationship between the offender, the victim and the community. 8. *Reintegration*: To facilitate the re-entry of the offender into the society” 1. The court’s determinations not to fix a term but to have regard to mitigation and re-sentencing. The deterrence has been the mandatory nature of the death penalty imposed on the applicant without regard to the circumstances of each case. The determination of discretion varies according the circumstances of each case and it is not upon any court to stipulate a fixed term to be applied as life imprisonment. As regards life sentence in sexual offences, the above decision (Manyeso) was set aside vide the judgment of the Supreme Court of Kenya in *Republic v Manyeso* (Petition E013 of 2024) [2025] KESC 16 (KLR) (11 April 2025) (Judgment) where the court stated as follows: Paragraph 11 to 14 of the Muruatetu & another v Republic; Katiba Institute & 4 others (Amicus Curiae) [2021] KESC 31 (KLR) directions (Muruatetu Direction) were very clear that the decision in the Muruatetu & another v Republic; Katiba Institute & 5 others (Amicus Curiae) [2017] KESC 2 (KLR) (Muruatetu decision) did not invalidate mandatory sentences or minimum sentences in the Penal Code, Sexual Offences Act or any other statute. The Muruatetu decision could not be said to be the authority for stating that all provisions of the law prescribing minimum sentences were inconsistent with the Constitution. Paragraphs 93 to 97 of the Muruatetu decision were also explicit that it was not for the court to define what constituted a life sentence. While the Supreme Court appreciated that a life sentence could mean a certain minimum or maximum time to be set by a judicial officer, the Supreme Court made the recommendations to the Attorney General to develop legislation on what constituted a life sentence. It was upon the Legislature to enact legislation on what constituted a life sentence and not the courts. … The Court of Appeal erred in law by substituting the life imprisonment sentence with a 40-year sentence, thereby usurping the legislative power to define sentences. The Court of Appeal did not have jurisdiction to interfere with the sentence imposed by the trial court and affirmed by the first appellate court. Consequently, the life imprisonment sentence remained lawful and in line with section 8 of the Sexual Offences Act 1. The appellant was heard and exhausted his appeal under the old constitutional dispensation. He has not filed any other application under the new constitutional dispensation. It is important to note that parties to related criminal litigation have to catch up and live to the reality. Based on the above discourse, I find legal basis on which to exercise my discretion in favour of the Applicant for in doing so I uphold the constitution. In the case of **Ramakant Rai vs. Madan Rai, Cr LJ 2004 SC 36**, the Supreme Court of India rendered itself thus on the issue of judicial discretion: **“Judicial discretion is canalized authority not arbitrary eccentricity. Cardozo, with elegant accuracy, has observed:** **“The judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not a yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to ‘the primordial necessity of order in the social life.’ Wide enough in all conscience is the field of discretion that remains”.** 1. However, there must be certainty achieved by consistency in the judicial decision making for there to be confidence in our courts. The doctrine of *stare decisis* obliges this Court to follow the binding decisions of the Supreme Court. Article 163(7) of the Constitution provides that: *“All courts, other than the Supreme Court, are bound by the decisions of the Supreme Court.”* 1. The Supreme Court in Muruatetu I (supra) decreed the proper that a challenge on the constitutional validity of the mandatory death penalty in such cases like robbery with violence 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 the decision in question could be reached. This has now reached the high court. By placing a mandatory death penalty, the statute places all offenders in the same pedestal. However, this should not be as the degree of culpability is different. In this case if the mandatory nature of the death penalty is not handled well, there will be a loss to the punishment for various degrees of heinousness. The death penalty should be reserved for the very deserving cases. 2. Further, in the recent Supreme Court’s case of Joshua Gichuki Mwangi & Others in Petition No. E018 of 2023 it was decreed that any challenge on the constitutional validity of mandatory sentences for other capital offences, other than murder in respect of which the Supreme Court has already delivered itself in the famous Muruatetu case, is welcome for determination by the High Court and the Court of Appeal where necessary, in the event of an appeal. 3. The constitution does not envisage that there has to be a formula to approach the court. Article 20 of the constitution provides as follows: (1) The Bill of Rights applies to all law and binds all State organs and all persons. (2) Every person shall enjoy the rights and fundamental freedoms in the Bill of Rights to the greatest Extent consistent with the nature of the right or fundamental freedom. (3) In applying a provision of the Bill of Rights, a court shall— (a) develop the law to the extent that it does not give effect to a right or fundamental freedom; And (b) adopt the interpretation that most favours the enforcement of a right or fundamental freedom. (4) In interpreting the Bill of Rights, a court, tribunal or other authority shall promote- (a) the values that underlie an open and democratic society based on human dignity, equality, equity and freedom; and (b) the spirit, purport and objects of the Bill of Rights. (5) In applying any right under Article 43, if the State claims that it does not have the resources to implement the right, a court, tribunal or other authority shall be guided by the following principles (a) it is the responsibility of the State to show that the resources are not available; (b) in allocating resources, the State shall give priority to ensuring the widest possible Enjoyment of the right or fundamental freedom having regard to prevailing circumstances, Including the vulnerability of particular groups or individuals; and (c) the court, tribunal or other authority may not interfere with a decision by a State organ concerning the allocation of available resources, solely on the basis that it would have Reached a different conclusion. 1. The most important factor is that in meting out punishment, there can be no privileged children. I fully submit to the decision of the Supreme Court as it is binding to this court. Nevertheless, the said decision gave a wide window to address the question of the mandatory death sentence for the other offences arising from the High Court. In the case of [**Muruatetu & another v Republic; Katiba Institute & 5 others (Amicus Curiae) [2021] KESC 31 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/31/eng%402021-07-06)**,** the supreme court addressed the question as follows: In respect of other capital offences such as treason under section 40(3) of the Penal Code, robbery with violence under section 296(2) of the Penal Code, and attempted robbery with violence under section 297(2) of the Penal Code, 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 the decision in question could be reached. 1. The court requested for the decisions relating to the court of appeal and was satisfied that there were no pending proceedings in the court of appeal. This caused a considerable delay in hearing of this application as the court was getting satisfied with the non- pendency of any matter in the court of appeal in line with the decision of **Muruatetu & another v Republic; Katiba Institute & 5 others (Amicus Curiae) [supra]:** Where an appeal was pending before the Court of Appeal, the High Court would entertain an application for re-sentencing upon being satisfied that the appeal had been withdrawn. In the re-sentencing hearing, the court had to record the prosecution’s and the appellant’s submissions under section 329 of the Criminal Procedure Code, as well as those of the victims before deciding on a suitable sentence. 1. As held in the case of [**Mukenya v Republic [2025] KEHC 17161 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/17161/eng%402025-11-19) this court stated as follows: **31. In this state, it's essential that convicts have a chance to reform and that their sentences be reduced according to culpability. This helps to shape the heinousness of crimes. A robber, who knows that the lesser violence he metes out, the lower the sentence will be, will not have utter disregard for human life. He will mete out violence only to accomplish the robbery and not be extreme.** **32. On the other hand, some sentences must be reserved for the very worst of the criminals. The death penalty, qua death penalty, is constitutional and a valid sentence to mete out. However, the applicant is concerned with the mandatory nature. The mandatory nature of the death penalty removes discretion from the court.** **33. Section 296 of the Penal Code provides for both the offences of robbery and aggravated robbery and their respective penalties under sub-sections (1) and (2) as follows:296 (1) Any person who commits the felony of robbery is liable to imprisonment for fourteen years.** **(2)If the offender is armed with any dangerous or offensive weapon or instrument, or is in company with one or more other person or persons, or if, at or immediately before or immediately after the time of the robbery, he wounds, beats, strikes or uses any other personal violence to any person, he shall be sentenced to death. [Emphasis mine]** **34. Robbery itself as an offence is created, and section 295 of the Penal Code provides as follows:** **Any person who steals anything, and, at or immediately before or immediately after the time of stealing it, uses or threatens to use actual violence to any person or property in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained, is guilty of the felony termed robbery.** **35. The sentencing bit of the offence recognizes that it is a graduated offence. There is a simple primary school type of robbery and PHD level of robbery, forgiving the intended pun. The punishment cannot be the same. It follows that, though it is indicated that the offender shall be sentenced to death, the word shall can be read to mean may. It therefore means that the death penalty for robbery with violence is the highest sentence. The court must have discretion to mete out a sentence depending on mitigation, personal facts, and the offender's age, and must exercise that discretion among others.** 1. The death penalty meted out was mandatory. The applicant had not mitigated. The mitigation does not take away the fact that the applicant took a life. Further, from the facts it was noted that the offence was committed in the presence of PW1 and her children aged 12 and 8 years. They had locked their doors but were ordered to open the door. As held in the case of **Gona & 2 others v Republic** (Criminal Appeal E026, E027 & E028 of 2023 (Consolidated)) [2026] KECA 518 (KLR), the death sentence is lawful. The court in that case held as follows: **When the evidence against the Appellants together with their mitigation is weighed out against the brutal, inhuman and premeditated manner in which they murdered the deceased, and the fact of the wanton loss of his life has caused to his family, more particularly his wives and 6 young children, as well as the community at large are considered, the circumstances of this case warrant that the death sentence be substituted with a stiff sentence of forty (40) years imprisonment, which, we are of the view would be more appropriate.** 1. From the evidence, the applicants cut the first complainant on the head and the second complainant who was a daughter in-law. The mother-in-law succumbed. Applicant indicated that he was remorseful, was aged 21 years at the time of the offense, a first offender. I have read the proceedings, and note that this was aggravated robbery. It is true that ordinarily, the death penalty is not mandatory as held above. After weighing the evidence together with their mitigation as weighed out against the brutal, inhuman and premeditated manner of killing in count 1 and causing grievous harm to the second complainant and the fact of the wanton loss of life, committed in the presence of children aged between 8 and 13 years, it is important to protect the community at large. However, in this case, notwithstanding the holding above, the death penalty was a proper sentence. 2. The court has considered the totality of the evidence on record, and notes that it is not disputed that the applicant attacked the first complainant and inflicted a severe neck injury, which resulted in profuse hemorrhage resulting into her death in the presence of the daughter-in-law, and minor children. He also attacked the second complainant, who was the deceased's daughter-in-law, causing her grievous harm by cutting her head. The first complainant subsequently succumbed to the injuries sustained during the attack. 3. In mitigation, the applicant stated that he was remorseful, was 21 years old at the time of the offence, and was a first offender. I have carefully read the proceedings and considered the circumstances of the case. The offence was committed in the course of an aggravated robbery and was attended by extreme violence. 4. It is true that, following the decisions of these superior courts, as enunciated above, the death penalty is not mandatory, since the mandatory nature of the death penalty is unconstitutional. A sentencing court must consider the circumstances of each case, together with any mitigating and aggravating factors, before arriving at an appropriate sentence. 5. Having weighed the applicant's mitigation against the aggravating circumstances, I find that the attack was brutal, inhuman and premeditated. The victim in Count I lost her life, while the second complainant sustained grievous harm. The offences were committed in the presence of children aged between 8 and 13 years, exposing them to a traumatic and violent ordeal. The conduct displayed a complete disregard for the sanctity of human life and the security of the victims within their home. 6. The court must also consider the need to protect the community, denounce such conduct, and deter similar offences. In the circumstances of this case, notwithstanding the finding that the death penalty is not mandatory, I am satisfied that the death sentence was a lawful, proper and proportionate sentence. Determination 1. Arising from the foregoing, the application is allowed. This application is merited and consequently allowed in the following terms: 2. The mandatory nature of the death sentence as provided for under section 296(2) of the [Penal Code](https://kenyalaw.org/akn/ke/act/1948/81) is hereby declared unconstitutional. 3. For the avoidance of doubt, this order does not disturb the validity of the death sentence as contemplated under Article 26(3) of the [Constitution](https://kenyalaw.org/akn/ke/act/2010/constitution). 4. The application for review of sentence is dismissed. 5. 14 days right of appeal. 6. File is closed. **DELIVERED, DATED** and **SIGNED** at **NYERI** this **23rd** day of **July,** the year of our Lord **Two Thousand and Twenty-Six**. Ruling delivered through Microsoft Teams Online Platform. **KIZITO MAGARE** **JUDGE** **In the presence of: -** Pro se Applicant present Mr. Kihara for the State PC Franklin at Manyani Maximum Prison Court Assistant – Timothy