https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12432

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT VIHIGA** **CRIMINAL MISCELLANEOUS NO E029 OF 2025** **DERRICK MATUNDA ……..……………….…..………………………. APPLICANT** **VERSUS** **REPUBLIC…………………………………………………………………RESPONDENT** **RULING** **INTRODUCTION** 1. The Applicant herein was charged with the offence of robbery with violence contrary to Section 295 as read with Section 296(2) of the Penal Code, Cap 63 (Laws of Kenya). He was convicted and sentenced to death. 2. He lodged an appeal at Kakamega in **Criminal Appeal No. 31 of 2016** where the court upheld his conviction but substituted the death sentence with imprisonment for a term of eighteen (18) years. 3. On 13th May 2025, he filed the present application seeking review of the sentence imposed upon him. He prayed that the period he stayed in custody for more than ten (10) years be considered sufficient punishment and that the remaining portion of his sentence be substituted with a non-custodial sentence. 4. In his Affidavit in support of the application, he averred that he was a first offender, that he had maintained good conduct throughout his incarceration and that he had undergone rehabilitation, acquired vocational skills and trained in carpentry joinery and tailoring during his incarceration. He stated that his family and community were ready to receive him as a reformed and law-abiding citizen. 5. His Written Submissions dated 3rd October 2025 were filed on the same date while those of the Respondent were dated 28th January 2026 and filed on 4th February 2026. The Ruling herein is based on the said Written Submissions which both parties relied upon in their entirety. **LEGAL ANALYSIS** 1. The Applicant submitted that this court had jurisdiction to review his sentence pursuant to Article 50(2)(q) of the Constitution of Kenya, 2010. He argued that the court ought to have considered his circumstances after conviction, including the period already served, his rehabilitation while in custody and his prospects of reintegration into society. 2. He submitted that he had served more than two-thirds of the sentence and urged the court to consider the period already spent in custody as sufficient punishment. He urged the court to consider rehabilitation as an important objective of sentencing and substitute the remaining period of imprisonment with a non-custodial sentence. 3. The Respondent opposed the application. It submitted that the Applicant had already exercised his right of appeal before the High Court at Kakamega, which had considered the sentence imposed by the trial court and substituted it with a determinate term of imprisonment. 4. It argued that the sentence imposed by the High Court was lawful and that the Applicant had not demonstrated any legal basis upon which this court could interfere with a sentence that had already been determined by an appellate court. 5. Having considered the submissions by the parties, it appeared to this court that the issue that had been placed before it for determination was whether or not this court had jurisdiction to review and vary a sentence that had been imposed by the High Court while exercising its appellate jurisdiction. 6. Section 354(3) of the Criminal Procedure Code provides follows:- **“The court may then, if it considers that there is no sufficient ground for interfering, dismiss the appeal or may—** 1. **in an appeal from a conviction—** * 1. **reverse the finding and sentence, and acquit or discharge the accused, or order him to be tried by a court of competent jurisdiction; or** 2. **alter the finding, maintaining the sentence, or, with or without altering the finding, reduce or increase the sentence; or** 3. **with or without a reduction or increase and with or without altering the finding, alter the nature of the sentence;** 2. **in an appeal against sentence, increase or reduce the sentence or alter the nature of the sentence;** **(bb) in an appeal from an acquittal, an appeal from an order refusing** **to admit a complaint or formal charge or an appeal from an** **order dismissing a charge, hear and determine the matter of law** **and thereupon reverse, affirm or vary the determination of the** **subordinate court, or remit the matter with the opinion of the** **High court thereon to the subordinate court for determination,** **whether by way of rehearing or otherwise, with such directions** **as the High Court may think necessary, and make such other** **order in relation to the matter, including an order as to costs, as** **High Court may think fit;** 1. **in an appeal from an acquittal, an appeal from an order refusing to admit a complaint or formal charge or an appeal from an order dismissing a charge, hear and determine the matter of law and thereupon reverse, affirm or vary the determination of the subordinate court, or remit the matter with the opinion of the High Court thereon to the subordinate court for determination, whether by way of re- hearing or otherwise, with such directions as the High Court may think necessary, and make such other order in relation to the matter, including an order as to costs, as the High Court may think fit;** 2. **in an appeal from any other order, alter or reverse the order, and in any case may make any amendment or any consequential or incidental order that may appear just and proper.”** 3. Notably, in the case of **Mbugua & 6 Others vs Attorney General & 3 Others (Constitutional Petition E002 & E003 of 2024 (Consolidated)) [2025] KEHC 1248 (KLR)** (24 February 2025) (Judgment), this very court held that it was discriminatory to deny offenders who had been convicted of the offence of robbery with violence and attempted robbery with violence the right to have their mitigation during trial considered, while the non-capital offenders enjoyed that right. 4. It recognised that under Article 27(1) of the Constitution of Kenya, persons who had been convicted for robbery with violence and attempted robbery with violence were also equal before the law, they had a right to be protected before the law and had to derive equal benefit from the law as the non- capital offenders. 5. The court’s decision was in line with the directions of the Supreme Court on 6th July 2021 in **Francis Karioko Muruatetu and Another vs Republic [2017] eKLR** (commonly now known as Muruatetu II) that the question of constitutionality of the death sentence in robbery with violence cases ought to commence at the High Court and thereafter escalated to the Court of Appeal, if necessary. It rendered itself as follows:- “**46.To clear the confusion that exists with regard to the mandatory death sentence in offences other than murder, we direct in respect of other capital offences such as treason under section 40 (3), robbery with violence under section 296 (2), and attempted robbery with violence under section 297 (2) of the Penal Code, that a challenge on the constitutional validity of the mandatory death penalty in such cases should be properly filed, presented, and fully argued before the High Court and escalated to the Court of Appeal, if necessary, at which a similar outcome as that in this case may be reached. Muruatetu as it now stands cannot directly be applicable to those cases**(emphasis court).” 1. In the case of **Ramadhan & 8 others v General & another (Petition 5 of 2022 & Constitutional Petition 6 of 2022 (Consolidated)) [2024] KEHC 1173 (KLR**) (6 February 2024) (Judgment), Sewe J looked at the mandatory nature of the death sentence under Section 296(2) of the Penal Code and declared it unconstitutional. She further directed that the petitioners be presented before the respective sentencing courts for sentence re-hearing upon appropriate applications 2. In the case of **Mbugua & 6 Others vs The Hon Attorney General** (Supra) as consolidated with **Alfred Eyase Kinamundu & 2 Others vs the Hon Attorney General & Others** (Supra), this court looked at the aspect of re-sentencing of persons who had been convicted under Section 296(2) and Section 297(2) of the Penal Code and rendered itself as follows:- **“67.The purpose of incarceration is rehabilitation and reformation of prisoners. It was psychological torture for a prison to take numerous courses to improve himself or herself in prison but never use those skills in the society. Indeed, learning of skills had the purpose of easing the integration of prisoners back into the society. Life imprisonment denied convicts who were on life sentence hope for a better future. It was discriminatory that all convicts had hope of going home other than those who had been convicted of the offence of robbery with violence and attempted robbery with violence. There had to be a determinate period within which a person had to atone for their sins.”** 1. The long indeterminate incarceration while undergoing rehabilitation programs without the prospect of being released was in the considered opinion of this court a blatant violation of the Petitioners’ right to dignity contrary to Article 28 of the Constitution of Kenya. 2. For those who had been convicted and did not have the benefit of mitigating before being sentenced such as the Petitioners herein, they had a reprieve in Article 50(2) of the Constitution of Kenya which sets out some of the principles that were considered to constitute fair trial. One of these principles was the right to lodge an appeal or apply for review in a higher court, if convicted as stipulated in Article 50 (2) (q)) of the Constitution of Kenya. 3. Such mitigation, which would include the behaviour while in prison and proof of reformation and possibility of reintegration in the society which would enable an appellate and/or review court have a holistic view of the case. During appeal or review of a case, a higher court would have had all the facts and circumstances of the accused on record to enable it assess the appropriate sentence in case there was merit for a sentence reduction. 4. In this regard, it found that applicants seeking re-sentencing ought to file documents to support their mitigating factors. These documents could include certificates of programmes they had undergone in prison leading to their rehabilitation and recommendation letters from the Officers in charge of prisons. 5. This court noted that appellants who included **Francis Karioko Muruatetu in the Court of Appeal case of Gachanja & 7 Others (Criminal Appeal 51 of 2004) [2011] KECA 402 (KLR)** (20 May 2011) Judgment were re-sentenced by the High Court on 16th December 2019 in **Misc. Criminal No 394 of 2017** consolidated with **Misc. Criminal Applications Nos 614, 28, 560, 589, 590 and 586 of 2018**. 6. In the same vein, as the Court of Appeal had not yet dealt with the constitutionality of the mandatory nature of death sentence in respect of the Applicant herein. This court therefore found and held that it would not be violating the doctrine of stare decisis if it determined that it could allow the Applicant to mitigate and then re-sentence him in line with the case of **Mbugua & 6 Others vs The Hon Attorney General** (Supra) as consolidated with **Alfred Eyase Kinamundu & 2 Others vs the Hon Attorney General & Others** (Supra) and **Ramadhan & 8 others v General & Another** (Supra). 7. In this regard therefore, the court has recognised that as it had both original and appellate jurisdiction to hear criminal and civil cases as provided in Article 165(3)(a) of the Constitution of Kenya and further it could review the decision of the lower court as provided under Article 50(2)(q) of the Constitution of Kenya, it did not have to send the lower court file back to the lower court for re-sentencing. 8. The issue before this court was not whether the Applicant’s circumstances were worthy of consideration, but whether this court had jurisdiction to reconsider and vary a sentence that had already been determined by another High Court exercising appellate jurisdiction. His complaint was founded on circumstances arising after conviction, including the period served, rehabilitation undertaken and his conduct while in custody. 9. In exercising that jurisdiction, the High Court at Kakamega had considered the Applicant’s appeal, upheld the conviction and substituted the death sentence with eighteen (18) years imprisonment. The sentence that he challenged did not, therefore raise any constitutional issues as was envisaged in the case of **Mbugua & 6 Others vs The Hon Attorney General** (Supra) as consolidated with **Alfred Eyase Kinamundu & 2 Others vs the Hon Attorney General & Others** (Supra) and **Ramadhan & 8 others v General & Another** (Supra). 10. This court was guided by the principle that the doctrine of *functus officio* existed to bring finality to litigation. Once a court had conclusively determined a matter within its jurisdiction, it could not reopen and determine the same issue afresh except in circumstances permitted by law. 11. In the case of **Telkom Kenya Limited v John Ochanda (Suing on his own behalf and on behalf of 996 Former Employees of Telkom Kenya Limited) [2014] eKLR** where the Court of Appeal held that the doctrine of *functus officio* prevented a court from revisiting a matter after it had rendered its final decision, except in limited circumstances recognized by law. 12. In addition, this court was guided by the doctrine of *stare decisis* to the effect that it was bound by the decisions of the courts above it. Article 165(6) of the Constitution of Kenya states as follows:- **“The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court.”** 1. In the present matter, the High Court at Kakamega had exercised its appellate jurisdiction and rendered a final determination on the Applicant’s sentence. This court could not assume an appellate role over that decision or reconsider the merits of a sentence imposed by a court of concurrent jurisdiction. 2. The Applicant’s reliance on Article 50(2)(q) of the Constitution did not alter that position. The right to appeal or apply for review had to be exercised within the framework provided by law and did not create a further avenue for repeated appellate consideration before a court of the same status. 3. The court, therefore, found that the appropriate mechanism for challenging the decision of the High Court at Kakamega, if available in law, was through the appellate process provided by law and not through an application inviting this court to reconsider that decision. 4. Having found that it lacked jurisdiction to vary the sentence imposed by the High Court at Kakamega, the court found it unnecessary to determine whether the Applicant’s rehabilitation record would have justified substitution of the sentence. 5. Nevertheless, the court observed that rehabilitation, acquisition of skills and good conduct while in custody were relevant considerations in the correctional process. They demonstrated positive efforts towards reform but did not, without more, create an entitlement to reduction or substitution of a lawful sentence imposed by a competent court. 6. The court further observed that prison decongestion initiatives were important in the administration of correctional services but could not override the legal framework governing sentences imposed by courts. **DISPOSITION** 35. For the foregoing reasons, the court’s decision was that the Applicant’s Notice of Motion application dated and filed on 13th May 2025 was not merited and the same be and is hereby dismissed. 36. It is so ordered. **DATED** and **DELIVERED** at **VIHIGA** this **29th** day of **July** 2026 **J. KAMAU** **JUDGE**