https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13049

**REPUBLIC OF KENYA** **IN THE HIGH COURT AT VIHIGA** **CONSTITUTIONAL PETITION NO. E002 OF 2026** **IN THE MATTER OF ARTICLES 2, 19, 20, 21, 22, 23, 25(c), 27, 28, 48, 50, 159 AND 165(3)(b) & (d) OF THE CONSTITUTION OF KENYA, 2010** **AND** **IN THE MATTER OF THE CONSTITUTIONALITY OF THE MANDATORY DEATH SENTENCE PRESCRIBED UNDER SECTION 296(2) OF THE PENAL CODE, CAP 63 LAWS OF KENYA** **AND** **IN THE MATTER OF THE RIGHT TO DIGNITY, EQUALITY BEFORE THE LAW, NON-DISCRIMINATION, FAIR TRIAL AND THE BENEFIT OF THE LEAST SEVERE PUNISHMENT** **BETWEEN** **MAXWEL LUBUYA ESESE ............................................... PETITIONER** **VERSUS** **THE DIRECTOR OF PUBLIC PROSECUTIONS ................ RESPONDENT** *(Arising from Original Criminal Case No. 1006 of 2013 at the Senior Principal Magistrate's Court at Vihiga; High Court Criminal Appeal No. 79 of 2016 at Kakamega; and Court of Appeal Criminal Appeal No. 12 of 2018 at Kisumu)* **CORAM: Before Justice R. Nyakundi** **Mr. Leina Davies for the State** **JUDGMENT** **Background** 1. He Petitioner in this case Maxwel Lubuya Esese was initially charged jointly with Wycliffe Ludenyo Aika and Wyciffe Imbuga Onyango before the SPM at Vihiga in CR. Case No. 1006 of 2013 with the principal count of robbery with violence contrary to Section 295 as read with Section 296(2) of the Penal Code. The particulars of the offence being that on the 30th day of September 2013 at 9.30pm at Chamasilihi Village, Mbale Sub Location, Izava North Location in Vihiga County, jointly with others not before Court while armed with offensive weapons namely pangas and rungus robbed off Lucy Nyaleso Mole six handbags, one mobile phone make Nokia 1280 and cash Kshs.2,000/= all valued at Kshs.11,000/=, the property of Lucy Nyaleso Mole and at the time of such robbery threatened to use actual violence to the said **Lucy Nyaleso Mole.** 2. In the alternative count, the 1st accused person was charged with handling stolen property contrary to Section 322(1) as read with Section 322(2) of the Penal Code. The particulars of the offence being that on the 30th day of September 2013 at 9.30pm at Chamasilihi Village, Mbale Sub Location, Izava North Location in Vihiga County, otherwise than in the course of stealing, dishonestly/retained six handbags knowing or having reasons to believe them to be stolen goods. In count II, all the accused persons were charged with assault causing actual bodily harm contrary to Section 251 of the Penal Code. The particulars of the offence being that on the 30th day of September 2013 at 9.30pm at Chamasilihi Village, Mbale Sub Location, Izava North Location in Vihiga County, jointly with others not before the Court unlawfully assaulted Josphat Kinavode thereby occasioning him actual bodily harm. 3. Following the finding of guilty and conviction by the learned trial Magistrate she proceeded to impose sentence couched in the following language: *In view of the clear provisions of the Section 296(2) of the Penal Code on mandatory death sentence on conviction for the offence and the confirmation by the bench of five in the Court if Appeal case of Joseph Njuguna Mwaura & 2 Others vs R, I hereby sentence the accused persons to death for the offence of robbery with violence. Right of appeal is 14 days*. 1. This conviction and sentence became a subject of an appeal before the High Court in Criminal Appeal Case No. 79 of 2016 in which the session Judge made the following findings and decreed as follows: *33. In the instant case, Ludenyo was apprehended as he tried to flee from the sugar cane plantation when he fell into a ditch. According to Josephat and Vincent, two other people escaped, but soon after Ludenyo’s arrest, Maxwell and Imbuga were arrested some 6 metres away hiding near the fence. Upon arrest, they could not explain why they were in that place at the material time. Some 6 metres away from the scene, the police recovered 6 handbags, which handbags were positively identified by both Josephat and Lucy as the bags that had been stolen from their house that same night at around 9.00pm. The 6 handbags were produced as PExhibit 4. It is noteworthy that the arrests took place within a very short time after the robbery.* *34. In summary, I am satisfied that the doctrine of recent possession is applicable in this case. The handbags were found in the very same place where Ludenyo was arrested, and just a short distance away from where Maxwell and Imbuga were found hiding. Though the handbags were not found in the hand of any of the three appellants, the fact that the handbags were found within the vicinity of the area where the three appellants were arrested confirmed the evidence that there had infact been three people at the scene before two of them ran ahead of Ludenyo. This is a confirmation that he three appellants were in possession of the 6 handbags* *35. The appellants stated separately that they had simply rushed out in response to the screams they heard, but in my considered view that story was made up by each one of them as they awaited trial. The truth of the matter is that they were all out there in that place as they were trying to evade arrest after committing the robbery.* *36. In conclusion and for the reasons above stated, I find no merit in the appellant’s appeals. The same be and are hereby dismissed on both conviction and sentence. Right of appeal within 14 days.* *It is so ordered* 1. It is on record that the matter did not stop there, the Convicts proceeded to the Court of Appeal in Criminal Appeal No. 12 of 2018 and apparently the same issues before the High Court were canvassed and the Appeal’s Court dismissed the appeal of Wycliffe Ludenyo Aika on both conviction and sentence. It goes without saying that if Maxwell and Wycliffe Imbunga Onyango were also in the same bench that decision applies to each one of them *mutatis mutandis*. This Court is privy to an application filed before Kamau J as she then was the PJ of Vihiga High Court in which the main Actor or Applicant was Wycliffe Ludenyo Aika in which he had pleaded the 13 grounds for the Court’s considerations. The Court having considered all the justiciable issues ruled as follows: *17. having considered the facts of this case, the Applicant’s mitigation, the Prosecution’s response thereto, the pre-sentence report, the Recommendation Letter by Timothy Tirunya ASP for the Officer in-charge Naivasha Maximum Prison dated 16th December 2025, and the Applicant's Certificates of completion on various rehabilitation programs, this Court came to the firm conclusion that a reduction of his death sentence to a sentence of thirty (30) years imprisonment would be reasonable in the circumstances of this case.* *18.As the Applicant's sentence was now determinate, this Court was mandated to consider the period that he spent in remand while his trial was on going in line with Section 333(2) of the Criminal Procedure Code Cap 75 (Laws of Kenya).* *19.The said Section 333(2) of the Criminal Procedure Code provides that:-“Subject to the provisions of Section 38 of the Penal Code (cap 63) every sentence shall be deemed to commence from, and to include the whole of the day of, the date on which it was pronounced, except where otherwise provided in this Code Provided that where the person sentenced under subsection (1)has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody” (emphasis Court).* *20.Further, Clause 4.6.20 (ix) of the Judiciary Sentencing Policy Guidelines provides that:-"The Sentencing Court shall be guided by the sentencing principles and objectives set out in Part I of these the Guidelines in all resentencing hearings. The following mitigating factors were set out by the Supreme Court as particularly relevant in a resentencing hearing:...(ix) Time already spent in prison by the convict..."* *21.The requirement under Section 333(2) of the Criminal Procedure Code was restated by the Court of Appeal in Ahamad Abolfathi Mohammed & Another vs Republic [2018] eKLR.* *22.A perusal of the charge sheet herein indicated that the Applicant was arrested on 30th September 2013. Although he was granted bond, he did not seem to have posted the same. He was sentenced on 24th October 2014. It was, therefore, this Court's view that that was a period that ought to be taken into account while computing his sentence.* *23.Accordingly, the upshot of this Court's decision was that although the Applicant’s conviction remained undisturbed as it was safe, his sentence of death which was later commuted by Executive Order of the President of Kenya to life imprisonment be and is hereby set aside and substituted with a sentence of thirty (30) years imprisonment which is to run from the date of the sentence of the lower Court.24.For the avoidance of doubt, the period which he spent in custody from 30th September 2013 until 23rd October 2014 be and is hereby taken into account while computing his sentence in accordance with Section 333(2) of the Criminal Procedure Code Cap 75 (Laws of Kenya).* *25. It is so ordered*. 1. That is in so far as the Courts have been engaged by the convicts in this litigation landscape. It appears to them that justice has not been done or seem to be done by the Courts in our legal system if the c constitutional petition dated 19th day of January 2026 by Maxwell Lubuya Esese is anything to go by where he sought the following prayers: 1. *A declaration that the mandatory death sentence imposed upon the Petitioner under Section 296(2) of the Penal Code is unconstitutional for violating Articles 25(c), 27(1),28 and 50(2)(p) of the Constitution of Kenya, 2010.* 2. *A declaration that the Petitioner is entitled to the benefit of the least severe punishment and to a sentence that respects his dignity and equality before the law.* 3. *An order directing that the Petitioner be presented before the Vihiga Law Courts or any other competent sentencing Court for sentence re-hearing and re-sentencing, upon consideration of mitigation and in accordance with the Judiciary Sentencing Guidelines* 4. *An order that Sections 216,329 and 333(2) of the Criminal Procedure Code be fully applied in the Petitioner's re-sentencing.* 5. *Any other or further orders that this Honourable Court may deem just and expedient in the circumstances.* 2. The Petitioner, Maxwel Lubuya Esese, is a convict currently held at Naivasha Maximum Security Prison under Prison Number NAV/776/022/LIFE. He was tried, convicted and sentenced to suffer death for the offence of robbery with violence contrary to Section 296(2) of the Penal Code, Cap 63 (Laws of Kenya). He has exhausted the ordinary appellate process. He now comes before this Court, in person, by way of a constitutional petition. 3. His complaint is a narrow but consequential one. He does not, in these proceedings, ask this Court to disturb his conviction. What he says is that the sentence of death visited upon him was not, in any meaningful sense, a *judicial* sentence at all. It was, he says, a legislative command that the trial Court was obliged to execute; that no mitigation was received or could have availed him. That no regard was accorded to his personal circumstances, his role in the offence, the value of the property taken, or the period he had spent in custody; and that a sentencing process so constituted cannot be reconciled with the Bill of Rights. 4. The Petition, dated 19th January 2026, is supported by the Petitioner's own Affidavit sworn on the same date. He filed Written Submissions dated 10th March 2026. He is a lay litigant and his pleadings bear the marks of that fact. The Court has, consistent with Article 48 and Article 159(2)(d) of the Constitution, read them generously and looked to their substance rather than their form. 5. The reliefs sought are, in summary: a declaration that the mandatory death sentence imposed under Section 296(2) of the Penal Code is unconstitutional; a declaration that the Petitioner is entitled to the benefit of the least severe punishment and to a sentence that respects his dignity and equality before the law; an order that he be set aside from the death sentence and presented before a competent Court for a sentence re-hearing at which mitigation is received; an order that Sections 216, 329 and 333(2) of the Criminal Procedure Code be applied; and such further relief as the Court may deem just. ## **THE PETITIONER'S CASE** 1. He contends that this state of affairs violates: Article 25(c), the non-derogable right to a fair trial; Article 27(1), equality before the law and the right to equal protection and equal benefit of the law; Article 28, the inherent dignity of the person; Article 48, access to justice; and Article 50(1) and (2), fair hearing and the entitlement, if convicted, to appeal to or apply for review by a higher Court. 2. He relies principally on *Francis Karioko Muruatetu & another v Republic* (Petition 15 & 16 of 2015) [2017] KESC 2 (KLR) ("Muruatetu I"); on the Directions of the Supreme Court in *Muruatetu & Another v Republic; Katiba Institute & 5 others (Amicus Curiae)* (Petition 15 & 16 of 2015) [2021] KESC 31 (KLR) ("**Muruatetu II**"); on *Ramadhan & 8 Others v General & Another* (Petition 5 of 2022 & Constitutional Petition 6 of 2022 (Consolidated)) [2024] KEHC 1173 (KLR); and on the decision of this very Court in *Mbugua & 9 others v Attorney General & 3 Others* (Constitutional Petition E002 & E003 of 2024 (Consolidated)) [2025] KEHC 1248 (KLR) (24th February 2025). 3. He further invokes comparative and international authority: *Reyes v The Queen* [2002] 2 AC 235 (Privy Council, Belize), for the proposition that a mandatory death sentence treats an offender as a faceless member of a class rather than as an individual human being; *Rattiram v State of Madhya Pradesh* (Supreme Court of India), for the proposition that the denial of fair trial safeguards vitiates the criminal process; and *Baptiste v Bahamas* (Inter-American Commission on Human Rights), for the proposition that automatic capital punishment is arbitrary and disproportionate. He also relies on the ambiguity said to attend Sections 295, 296 and 297 of the Penal Code, referring the Court to *Kaberia Kahinga & others v Republic*, and on the *audi alteram partem* rule. 4. On jurisdiction, he relies on Articles 22, 23(1) and 165(3)(b) of the Constitution; on *Owners of Motor Vessel "Lilian S" v Caltex Oil (Kenya) Ltd* [1989] KLR 1; on *Samuel Kamau Macharia & another v Kenya Commercial Bank Ltd & 2 others* [2012] eKLR; and on *Protus Buliba Shikuku v Attorney General* for the proposition that constitutional jurisdiction is distinct from appellate jurisdiction and remains available even after the conclusion of criminal appeals where the complaint is one of violation of constitutional rights. 5. In his mitigation, placed before this Court in his submissions and affidavit, the Petitioner states that he has been in custody for approximately thirteen years; that he entered prison as a young and unformed man; that he has maintained a clean disciplinary record; that he has undertaken counselling and guidance in anger management, conflict resolution and responsible living; that he has pursued education and vocational training; that he is remorseful and wishes to apologize to the complainant and to society; that his family stands ready to receive him; and that he undertakes never again to come into conflict with the law. 6. He is aged 43 years. He points out that life expectancy for males in Kenya is approximately 64.4 years, and submits that his continued detention under an unreviewable death sentence condemns him to die in custody without any individualized judicial consideration ever having been given to his case. ## **THE RESPONDENT'S CASE** 1. The Respondent was served but did not file a replying affidavit, grounds of opposition or written submissions, and did not appear at the hearing. The Petition is therefore, in the technical sense, unopposed. 2. That does not relieve the Petitioner of his burden. A constitutional petition is not granted by default. Where the reliefs sought include a declaration touching upon the validity of an Act of Parliament, the Court must be satisfied on the law and on the record that the claim is made out, and must be astute not to grant, by inadvertence or by concession, relief that ought properly to be refused. I have accordingly examined the Petition on its merits and have, of my own motion, considered the arguments that would have been available to the Respondent had it appeared. Chief among these are: the Directions in *Muruatetu II*; the Supreme Court's decisions in *Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae)* (Petition E018 of 2023) [2024] KESC 34 (KLR) and *Republic v Manyeso* (Petition E013 of 2024) [2025] KESC 16 (KLR); the line of Court of Appeal authority holding that the death sentence under Section 296(2) remains a lawful sentence; and the objections of *res judicata* and of the Court being asked to sit on appeal against a decision of the Court of Appeal. ## **PRELIMINARY OBSERVATIONS ON THE RECORD** 1. Before turning to the issues, four matters on the record require comment. 2. First, the non-joinder of the Attorney-General. The Petition names only the Director of Public Prosecutions as Respondent. Yet prayer (a) invites the Court to declare a provision of the Penal Code unconstitutional. Under Article 156(4)(b) of the Constitution, the Attorney-General represents the national government in Court proceedings, and it is the Attorney-General who is ordinarily the proper party to defend the constitutionality of a Statute. Rule 5(d) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 provides that a petition shall not be defeated by reason only of the misjoinder or non-joinder of parties, and I decline to strike out the Petition on that ground. The non-joinder is, however, of considerable significance when I come to consider the *scope* of the relief that this Court can properly grant, and I return to it at paragraphs 67 to 72 below. 3. Second, the precision of the pleading. *Anarita Karimi Njeru v Republic* [1979] eKLR, as affirmed in *Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others* [2013] eKLR, requires a Petitioner to set out with reasonable precision the right infringed, the manner of infringement, and the relief sought. The Petition here, though drawn by a lay person, meets that threshold. The impugned provision is identified, the constitutional articles are enumerated, the manner of infringement (the foreclosure of mitigation and of judicial discretion at sentencing) is plainly stated, and the reliefs are specific. 4. Third, certain errors and inconsistencies. The Petition states that the first appeal was dismissed on the "18th day of 2017"; the Written Submissions supply the omission — 18th December 2017 — and I proceed on that basis. The Written Submissions refer in one place to thirteen years in custody and in another to eighteen years; on the face of the record the Petitioner has been in custody since, at latest, 24th October 2014, and in all probability since shortly after 20th September 2013. He has therefore served approximately twelve years. The exact date of his arrest does not appear on the record before me and will have to be established from the trial Court file at the re-sentencing, a matter of some importance for the purposes of Section 333(2) of the Criminal Procedure Code. The Petitioner's affidavit refers to "my advocates on record" although he appears in person; nothing turns on this. The quotation from *Ramadhan* refers to "Section 279(2)" of the Penal Code; that is plainly a typographical error for Section 297(2). 5. Fourth, the invocation of Article 50(2)(p). The Petitioner leans heavily on Article 50(2)(p), which confers "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." Read strictly, that provision is directed at intervening statutory amendment. Section 296(2) was not amended between September 2013 and October 2014. To that extent the reliance on Article 50(2)(p), standing alone, is misconceived, and I say so plainly. But it is not the Petitioner's only, or best, foundation. The Supreme Court in *Muruatetu I* grounded its conclusion in Articles 25(c), 27, 28, 48 and 50(1) and (2)(q) of the Constitution, and it is upon those provisions, together with the statutory guarantees in Sections 216, 323, 329 and 333(2) of the Criminal Procedure Code, that the Petitioner's case truly rests. A lay litigant is not to be shut out because he has cited the wrong sub-paragraph of the right Article. ## **ISSUES FOR DETERMINATION** 1. Having considered the Petition, the Supporting Affidavit and the Written Submissions, the issues that fall for determination on part predominately is: 1. Whether this Court has jurisdiction to entertain the Petition, and whether it is barred by *res judicata* or by the fact that the Petitioner's appeals have been finally determined; ## **ANALYSIS AND DETERMINATION** ### **Jurisdiction and res judicata** 1. Jurisdiction is, as the Petitioner correctly submits on the authority of *Owners of Motor Vessel "Lilian S" v Caltex Oil (Kenya) Ltd* [1989] KLR 1, everything; without it a Court must down its tools. And, as the Supreme Court held in *Samuel Kamau Macharia & Another v Kenya Commercial Bank Ltd & 2 Others* [2012] eKLR, jurisdiction flows from the Constitution or from statute and cannot be conferred by consent or assumed by craft. The Mureithi v Republic *[2025] KEHC 3519: Reaffirmed that lower or equal Courts cannot supervise, review, or overturn final decisions issued by superior or peer Courts of competent jurisdiction* and in *Dari* Limited & 5 others v Supreme Court of Kenya *[2025] KEHC 8545: Highlighted that the High Court lacks the jurisdictional footprint to entertain suits challenging or reviewing decisions or the conduct of the Supreme Court of Kenya.* 2. There is no dispute that this criminal case has been litigated from the primary Court vested with jurisdiction under Article 50(1) of the Constitution together with the corresponding Statutes governing the Subordinate Court jurisdiction distribution within their ranks. The Convicts tested the efficacy and efficiency of our Courts all the way to the Court of Appeal in Criminal Appeal Case No. 12 of 2018 which appeal arose from the decision of the High Court on the same subject matter in HCCRA No. 79 of 2016. Essentially this is a concurrent holder of jurisdiction in the same strength and powers like the session Judge in HCCRA No. 79 of 2016. 3. It is acknowledged that the width and breadth of the High Court jurisdiction is premised under Articles 239(1) and 165(3) of the Constitution to address violation, infringement and/or a threat to a right or fundamental freedom. Thus: *“38. Article 165(3) of the constitution confers on this Court with very wide jurisdiction to deal with any matter that falls within its jurisdiction. That jurisdiction is not exhaustive given that Article 165(3) (e) states that the Court can have any other jurisdiction, original or appellate, conferred on it by legislation. In terms of Article 165(3) (d) (ii), the Court has jurisdiction to determine 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, the constitution. Article 23(1) also states that the Court has jurisdiction to hear and determine applications for redress of denial, violation or infringement of or threat to a right or fundamental freedom in the Bill of Rights. This jurisdiction is to be exercised in accordance with Article 165 of the Constitution. Article 23(3) of the constitution undoubtedly confirms the extent of the width of the jurisdiction of this Court to grant appropriate relief.”* 1. What should be borne in mind is whether this Court is competent and properly constituted to entertain the subject matter within its constitutional mandate as outlined above. The issue of jurisdiction forms the bedrock of the proceedings initiated by the petition. It is the jurisdiction that gives the authority and competence to the High Court to entertain all those issues being canvassed by the petition. As stated above in the cited authorities all the way to the Supreme Court it has been recognized and settled that jurisdiction is fundamental and crucial to any dispute adjudication and if jurisdiction is lacking any proceedings that are conducted or entertain would be a nullity however well conducted by the session Judge. Just borrow a leaf from the comparative law jurisdiction, the Court in *GTB v. Toyed (Nig) Ltd & Anor (2016) LPELR-4181 (CA)* observed: *The law is well settled and it no longer admits of any argument that jurisdiction is the very basis and the life wire of every matter and on which any Court tries or hears a case. It is, metaphorically speaking, the life blood of all trials, whether it be at the Court of trial or on appeal, and without which all such trials and hearings are a nullity notwithstanding how well or meticulous such a trial or proceeding had been conducted or how sound or profound the resultant judgement. It is simply a nullity. It is elementary law that jurisdiction is the superstructure upon which the judicial power of a Court of law is founded. In other words, jurisdiction is the life wire, the bedrock and foundation of all judicial and even quasi-judicial proceedings.* 1. Similarly, in *Galadima v. Tamba (2000) 6 S.C (Pt.1) 196 @ 206-207* the Court outlined: *Issue on Court’s jurisdiction is very pivotal and fundamental. Because of its fundamental nature, on the authorities, it can be raised at any state of the trial or even on appeal, and even before the apex Court. The reason for this latitude is obvious. A Court that lacked jurisdiction to entertain a suit, either as a trial or appellate Court, is incompetent to pronounce judgement in respect of any aspect of the matter in controversy before it. Time never runs against a Court to decide on its jurisdiction. The consequence of a Court continuing a case where it lacks jurisdiction is, as it were, like the Court embarking on a frolic which could indisputably result in a nullity for which the appellate Court, so invited, would have no compunction whatsoever to declare null and void. Jurisdiction question, be it in civil or criminal matter, has the same devastating consequence. An attack or question as to jurisdiction cannot be properly glossed over by any Court once it is raised by the defendant or the respondent. The procedure by which such a fundamental issue is raised may not be in consonance with the stipulated rules of Court for questioning a decision of Court, nevertheless, that will never be allowed to defeat the right to question the jurisdictional defect. To do so is to unwittingly postpone the doom’s day.* 1. In so far as this Court's jurisdiction is concerned to deal with interpretation of the Bill of Rights there is no dispute. For the law is very clear starting with Article 22(1) which entitles every person to institute proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or is threatened. Similarly, in Article 23(1) confers on the High Court jurisdiction to hear and determine such applications for redress of denial, violation of infringement of, or threat to, a right or fundamental in the Bill of Rights. Whereas in Article 165(3)(b) is also couched in the same language like Article 23(1) of the Constitution. Finally, in Article 165(3)(d)(i) and (ii) confers jurisdiction to determine whether any law is inconsistent with or in contravention of the Constitution and whether anything said to be done under the authority of the Constitution or of any law is inconsistent with or in contravention of the Constitution. 2. The more substantial question is whether the Petitioner, having gone to the Court of Appeal and lost, may now come here. Three related objections arise: *res judicata*; the principle that a constitutional petition must not be used as an appeal in disguise; and the doctrine of *stare decisis*. 3. First and foremost, the drafters of the Constitution must envision a dispute worthy adjudication by the High Court in the same spirit of discernment like the Petitioner before me when it enacted Article 50(6)(a)(b) of the Constitution which expressly provides as follows: *(6) A person who is convicted of a criminal offence may petition the High Court for a new trial if—* *(a)The person’s appeal, if any, has been dismissed by the highest Court to which the person is entitled to appeal, or the person did not appeal within the time allowed for appeal; and* *(b)New and compelling evidence has become available.* 1. This is the only Article of the Constitution which clothes the Court with jurisdiction for a convicted person to petition it for a new trial. The conditions are stringent to be surmounted by the Petitioner and *inter alia* of those conditions include an appeal has been heard and dismissed by the highest Court of the land or one has missed the appeal window but in his/her possession is new and compelling evidence to be shared with the Court. This provision has been litigated by our Courts to clarify the letter and the spirit of the law and how it applies to our daily lives. The Court in *Philip Mueke Maingi & 2 Others v Republic [2022] KEHC 2263 KLR* observed: *“fundamentally, the objective of the CJS is that after a fair trial there should be a true verdict. So far as humanly possible there should be no wrongful convictions, and where they occur or if new evidence emerges which undermines the safety of a conviction, they will be quashed and re-trial may be ordered…in my view, the architect of article 50 of the Constitution is that after a criminal trial ends in a conviction, the defendant can file a motion for a new trial only after the conditions stipulated in article 50 (6) are satisfied. The High Courts can grant an order or re-trial – though rarely - to correct significant errors that happened during trial or if substantial new evidence of innocence comes to light.” Whereas in* James Macharia Anumbi v. Republic (2017)*– The High Court clarified that "new evidence" means material that was unavailable during the original trial despite due diligence, and "compelling evidence" means proof of high probative value capable of potentially changing the verdict.”* 1. This is a matter or petition the Court is being invited to interpret the Constitution so that the remedy being sought by the Petitioner can be granted as provided for under Article 23 of the Constitution. In undertaking this task the provisions of Article 259(1) provides as follows: * 1. This Constitution shall be interpreted in a manner that— (a) Promotes its purposes, values and principles; (b) Advances the rule of law, and the human rights and fundamental freedoms in the bill of rights; (c) Permits the development of the law; and (d) Contributes to good governance. 1. In terms of the petition, and construction of Article 50(6)(a)(b) of the Constitution the Court in *Mohamed Abdulrahman Said v Republic (2015) and Mohammed Barisa Guyo v Republic (2020)* made the following remarks; that these provisions should not be used as a backdoor channel for a regular secondary appeal or re-urging old facts without genuine, newly discovered evidence. 2. As to the petition before this Court, a legal basis has been laid by the Petitioner under Articles 28, 27, 25, 50 of the Constitution as construed with Section 216, 329 & 333(2) of the CPC. The Petitioner went further to lay emphasis on the principles on the following cases; *Ramadhan & 8 Others v General & Another [2024] KEHC 1173 KLR* and *Mbugua & 9 Others v AG & 3 Others [2025] KEHC 1248(KLR*). He goes on to state the following grounds as a basis upon which this petition should be granted: * *Irreversible violation of human dignity* * *Unequal treatment before the law* * *Discriminatory punishment* * *Loss of meaningful opportunity for rehabilitation* * *Deprivation of the remainder of his natural life expectancy* * *Psychological and mental anguish* 1. All these grounds touched on the issue of sentence imposed by the Trial Court which in the Co-Convict Wycliffe Ludenyo Aika, had benefited for the death sentence to be varied and substituted with a 30-year imprisonment. It is not very clear why this proceeding from the original Criminal Case No. 1006 of 2013 has been re-litigated individually meaning there might be separate orders with differentia minimum or maximum as between the three Convicts whose case arises from the same set of facts. According to Maxwel Esese, he is challenging the mandatory and death sentence but he goes further to state that his sentence has been commuted to life imprisonment. The question is whether all the Superior Courts were incapable of being approached by the Petitioner to address this issue on sentence. The answer to me is in the negative. It is on record the Court of Appeal addressed the Petitioner’s Appeal in Criminal Appeal No. 12 of 2018 in a judgment delivered on 23rd February 2024. It is worth noting that a petition under Article 50(6) is not a re-trial or an appeal. It is not an opportunity for the High Court to re-evaluate the evidence that was tendered in the trial Court to see whether there was reasonable doubt or whether the Petitioner’s conviction was supported by the evidence adduced. The inquiry in an Article 50(6) Petition is limited to testing whether the evidence is new and compelling. The Supreme Court in Tom Martins Kibisu -vs- Republic [2022] eKLR describes *“new evidence”* as “evidence which was not available at the time of trial and which, despite exercise of due diligence, could not have been availed at the trial”; *and “compelling evidence” as* “evidence that would have been admissible at the trial, of high probative value and capable of belief, and which would probably have led to a different verdict had it been adduced at trial.” 2. I am of the considered view that on appeal an application can be made for additional evidence to be produced and therefore the Petitioner was not precluded from seeing leave of the Court to adduce any such grounds either touching on the Constitution or any other Statute on the already decided criminal case on both conviction and sentence. This Supreme Court decision in *Mohamed Abdi Mahamud v Ahmed Abdullahi Mohamad & 3 Others [2018] eKLR* is not restrictive to only the civil branch of the law. The ratio *decidendi* can apply in *pari materia* to adjudication of criminal cases. Thus, the Court laid down the following principles on additional evidence: 3. The additional evidence must be directly relevant to the matter before the Court and be in the interest of justice; 4. It must be such that, if given, it would influence or impact upon the result of the verdict, although it need not be decisive; 5. It is shown that it could not have been obtained with reasonable diligence for use at the trial, was not within the knowledge of, or could not have been produced at the time of the suit or petition by the party seeking to adduce the additional evidence; 6. Where the additional evidence sought to be adduced removes any vagueness or doubt over the case and has a direct bearing on the main issue in the suit; 7. The evidence must be credible in the sense that it is capable of belief; 8. The additional evidence must not be so voluminous making it difficult or impossible for the other party to respond effectively; 9. Whether a party would reasonably have been aware of and procured the further evidence in the course of trial is an essential consideration to ensure fairness and due process; 10. Where the additional evidence discloses a strong prima facie case of willful deception of the court. 11. The court must be satisfied that the additional evidence is not utilized for the purpose of removing lacunae and filling gaps in evidence. The court must find the further evidence needful; 12. A party who has been unsuccessful at the trial must not seek to adduce additional evidence to, make a fresh case in appeal, fill up omissions or patch up the weak points in his/her case; 13. The Court will consider the proportionality and prejudice of allowing the additional evidence. This requires the Court to assess the balance between the significance of the additional evidence, on the one hand, and the need for the swift conduct of litigation together with any prejudice that might arise from the additional evidence on the other.” 14. That did not seem to be the case in so far as the Petitioner’s circumstances are concerned when he appeared before the High Court and subsequently to the Court of Appeal. This is disguised as a Constitutional Petition but the Petitioner forgets that the issue of the death penalty has been discussed severally in the various Superior Courts as it relates and applies to Section 296 (2) of the Penal Code. A lot has happened in the last decade or so and there is some form of convergence as to the statutory provisions under Section 296(2) of the Penal Code of Kenya. The law in Kenya is deducible from a coherent legal order. The law making authority is located in the legislature. Thereafter the laws promulgated by both either the National Assembly or the Senate are to be expressed in the form of a comprehensive codes or a set of codes and it is the duty of the Judiciary through their respective Judges in the various levels of Courts to resolve all disputes arising in their jurisdiction. Fortunately, the Courts in Kenya have spoken as to the constitutionality of the death penalty as prescribed by Parliament under Section 296 (2) of the Penal Code for the offence of robbery with violence. As for the Petitioner this is not a new litigation. There is also no new compelling evidence to address the issues around the petition under Article 50 (6)(a)(b) of the Constitution. On reflecting the rights of our people as illuminated in the Bill of Rights, I echo the words of Professor Dworkin who posed the following questions: *“(1) Is it consistent, with the proposition that people have a right not to be convicted of a crime if innocent, to deny people any rights, in the strong sense, to procedures to test their innocence? (2) If not, does consistency require that people have a right to the most accurate procedures possible? (3) If not, is there some defensible middle ground, according to which people have some procedural rights, but not to the most accurate procedures possible? How might each rights be stated? (4) Do our conclusions hold for civil as well as the criminal law? (5) Are the decisions that Courts make about procedure, in the course of a trial, decisions of policy or principle? Which should they be? (6) Do people have procedural rights with respect to political decision of policy?"* 1. In the run up to this petition, many other Petitioners have moved the Court on the alleged questions pursuant to Section 296(2) of the Penal Code which makes mandatory that on conviction an offender should be sentenced to death, however, I take judicial notice that his co-convict Wycliffe Ludenyo Aika has already petitioned the High Court in Cr. Misc. App. E100 of 2024 to have his sentence reviewed and substituted with a term of imprisonment of 30 years. It is that decision among others which have an effect of the provisions of Section 296(2) of the Penal Code on the verdict that is decisive. It is now not the business of this Court to declare the mandatory death penalty for the offence of robbery with violence as that same issue has occupied the minds of other Justices in the Republic of Kenya and decisions are out there for the Petitioner to appreciate the roadmap set out on this very same issue. The simple answer is, it is for the Legislature to take appropriate steps to consider the provision as a whole so as to undertake the necessary steps compatible with the decisions of the Superior Courts. 2. In my view cumulatively from the start to the end of this litigation with regard to Article 50(6)(a)(b) of the Constitution it is difficult for a convicted criminal in Kenya to obtain a new trial based on new compelling evidence for to do so he/she must show the following criteria that the evidence was: 1. *Discovered after the trial,* 2. *Not discoverable through due diligence before the trial,* 3. *Material,* 4. *Not merely cumulative, and* 5. *Not merely impeaching or contradicting of former evidence.1 each of these requirements serves the criminal justice system’s legitimate interest in resolving the issue of the defendant’s guilt or innocence in a single trial and imposes a formidable burden on the Petitioner/Applicant seeking a second trial based on a claim that new evidence justifies a new trial.* 3. I am aware this a constitutional petition but it cannot preclude the record review principle. It is, in a sense, a specialized form of the rule limiting appellate Court consideration to arguments that were preserved below. Thus, not only is “determination of facts the responsibility of the trial Court, with the appellate Court being responsible only for ascertaining that a factual conclusion is reasonably supported by the evidence” presented below, but “an appellate Court should consider only those contentions that were initially made in the trial Court. That the principle regarding record review is well ingrained in our legal system that there is little in the way of criticism in from any quarters within the doctrine of equality of arms. 4. Although the primary focus of this article is on the role of new compelling evidence, in the judicial context here is a criminal case which has been prosecuted in the Court of appeal where the predominant grievances were on conviction and sentence. I have said that the other jurisdiction of the High Court in Article 163 is not available to the Petitioner. It is nevertheless possible to broadly characterize this petition in which the Petitioner is seeking resentencing. The case of *Muruatetu* does not apply. What is new evidence for purpose of this Article? The basic definition has been provided elsewhere in this judgment. For purposes of this petition no new evidence or information regarding an aspect of reality that was not presented to the Trial Court, soon thereafter to the High Court on appeal and finally to the Court of Appeal but now that is being presented to the Constitutional Court. Finally, under the criteria of new compelling evidence for purpose of this Article it does not include evidence that was considered and relied upon by the Trial Court and subsequently the two Superior Courts. 5. For this first limb of the question to be answered by this Court the petition fails for not meeting the threshold under Article 50 (6)(a)(b) of the Constitution. In the same analysis I am guided by the Supreme Court observation in the case of *Kenya Hotel Properties Ltd vs The AG & 5 Others Petition No. 16 of 2020* observed that: “*46. Turning to the facts of this petition, the judgment sought to be annulled is by the Court of Appeal. It is therefore not in dispute that the impugned judgment is by a Court superior to this Court in terms of judicial hierarchy. It is a judgment binding on this Court in terms of precedent. From the jurisdictional perspective of Article 165 of the constitution, this Court has wide -22- Petition No.16 of 2020 jurisdiction which is exhaustively provided for by the constitution. However, the constitution itself places a constitutional caveat that this Court cannot supervise other superior Courts.* *47. Article 165(6) states in plain language that this Court has supervisory jurisdiction over the subordinate Courts and over any person, body or authority exercising a judicial or quasi-judicial junction but not over a superior Court. Superior Courts in terms of Article 162 (1) of the constitution are the Supreme Court, the Court of Appeal, the High Court and Courts of equal status namely; the Employment and Labour Relations Court and the Environment and Land Court. The edict in Article 165(6) is in form of a constitutional limitation imposed on this Court not to do anything that would amount to supervising or superintending other superior Courts.* *48. Based on the above analysis, can this Court answer the Petitioner’s grievance in the affirmative and annul a decision of the Court of Appeal taking into account the pecking order of the superior Courts in this country? And can this Court issue an edict to the Court of Appeal directing that Court to reopen a closed appeal and hear it de novo? My answer to the above questions must be in the negative. If what the Petitioner asks of this Court were to happen, it would certainly amount to under mining the authority of the Court of Appeal by another -23- Petition No.16 of 2020 superior Court but inferior to it. It would be against clear words of Article 165(6).”* 1. In so far this petition is concerned the subject matter having been dealt with by the Judge coordinate of the High Court and thereafter the Petitioner proceeded to the Court of Appeal and the preeminence and the prerequisite of the conviction and sentence comprehensively heard and determined on the merits the cause of action is not within the jurisdiction of this Court. I therefore down tools in so far as the redress of the remedies fashioned under Article 23 of the Constitution are concerned. 2. As to *res judicata*, the Supreme Court in *John Florence Maritime Services Limited & Another v Cabinet Secretary for Transport & Infrastructure & 3 Others* [*2021] KESC 39 (KLR)* confirmed that the doctrine applies to constitutional petitions, but cautioned that it must be invoked with circumspection lest it become an instrument for shutting out genuine constitutional grievances. The test remains that in Section 7 of the Civil Procedure Act: the matter must have been *directly and substantially in issue* in the former suit, between the same parties, and have been heard and finally determined by a competent Court. 3. Although this doctrine is prominently litigated before the Civil Court as a principle of law there is no bar for it to apply in equal measure to criminal proceedings. In my view the principle of *res judicata* applies to criminal proceedings when a competent Court renders a final judgment on the merits such as the issues surrounding this petition. Those factual and legal determinations bind the parties barring subsequent contradictory prosecution by the State or by the Defence unless it is enlargement of time to have matters to do with the violation of the Constitution to be revisited. Fortunately, so all decisions of the Courts must mirror the Constitutional imperatives fundamentally on the Bill of Rights under Chapter 4 of the Constitution. The doctrine however does not apply if previous orders were made without a full adjudication on the merits such as an order dismissing or quashing a petition as withdrawn or interlocutory rejection of an application. 4. The petition is about the death penalty which was imposed under Section 296(2) of the Penal Code. Did the High Court and Court of Appeal address the issue of sentence during the pendency and determination of the appeals? The answer is in the affirmative. Was there a bar for the Petitioner to invoke the Constitution at the stage of hearing of his appeals? The answer is in the negative. Has there been a subsequent application by the co-convict with the Petitioner on the issue of sentence? The answer is in the affirmative. Is there procedural law which bars a convict to raise a constitutional issue to present the set of facts so that the decision can be made with completeness? There is no provision in the Constitution or Statute. I therefore affirm that the maxim *res judicata pro veritate accipitur* (a matter adjudged is accepted as the truth) applies to both criminal and civil proceedings. In this case I observed that the Petitioner cannot re-litigate the same offence on the same facts with regard to sentence that have already been decided on previous trials and appeals. The same transactions or occurrence test applies to this petition. In the Kenyan legal system, the doctrine of *Res Judicata* and cause of action estoppel and their application are closely related doctrines both of which aim to prevent either the Prosecution or the Offender/Convict/Petitioner/Appellant from re-litigating issues of law and facts which have already been decided by a Court of competent jurisdiction. As for the Petitioner if he thought these were weighty constitutional issues he should have subjected them for adjudication before the Supreme Court. That’s why *res judicata* is an important principle of finality in any legal system and it applies to both civil and criminal cases. The question therefore that this constitutional petition was never before the High Court and the Court of Appeal is a tactic maneuver with the sole objective of taking the Court for a ride in both procedural and substantive law trajectory of litigation. 5. I am ordained to render myself on this petition with the following words: *Res Judicata is a term that has originated from a Latin maxim that stands for 'the thing has been judged,' implying that the issue before the case, with the same parties, has already been resolved by another Court. The Court would then ignore the lawsuit before it, as being useless. In the case of both the civil and criminal justice systems, Res Judicata as a term is applicable. The term is often used to refer to 'bar re-litigation' of the same parties in such cases, which varies between the two legal systems. If a final judgment in a case has been released, the following judges facing a lawsuit that is similar to or virtually the same as the first one, must enforce the doctrine of Res Judicata 'in order to maintain the influence of the first judgment.' This is to prevent prejudice to the parties in an allegedly resolved lawsuit, but perhaps mostly to avoid needless misuse of the Legal System's money and time. (See 2018 Jetir August 2018, Volume 5, Issue www.jetir.org (ISSN-2349-5161)* 1. What this means a question of fact or law distinctly put in issue and directly determined by a Court of competent jurisdiction cannot afterwards be now disputed by the Petitioner. This is the statement of the policy behind the doctrine: *Res judicata is not a mere rule of procedure, but a rule of justice unlimited in operation, which must be enforced whenever its enforcement is necessary for the protection of rights and the preservation of the repose of society, based on the grounds that there should be an end to litigation, and that a person should not be twice vexed for the same cause. (See in Re Walsh’s Estate, 80 N.J.E. 565, 570, 74 Atl. 563, 566 (1909).* 1. I would dare say so firmly from these legal principles that where a criminal charge duly initiated by the DPP under Article 157(6)(7) of the Constitution as read with the provisions of the CPC on filing information on charge sheets and it is adjudicated by a Court having competent jurisdiction which decrees judgments on the merit, it is final at the matters adjudicated. In this respect the criminal law adjudication is in unison on *res judicata* with that which prevails in civil proceedings within the scope of Section 7 of the CPA. In the same result the Petitioner cannot be allowed to vex the Court that there is a new conceived idea of an unconstitutionality of the death penalty for the offence of robbery with violence contrary to Section 296(2) of the Penal Code. Despite the dramatic likelihood of the hypotheticals posed here by the Petitioner all what he needed to do is to look into the record of the prior trials on these issues and the doctrine of *res judicata* would be a bar. As if that is not enough if there is a provision in the Penal Code which has been re-litigated and the interpretation of the mandatory death penalty so strained in proper cases it is Section 296(2) of the Penal Code. There are compromised verdicts recognizing death penalty as a mandatory sentence to be unconstitutional. I associate myself with those decisions already on record in our repository and I have nothing useful to add or to make a declaration about on the same premise. The ball now is at the doorstep of the Legislature of Kenya to guide the country appropriately. Meanwhile without the amendment of the law, it is paradise lost for those who find themselves being indicted for the offence of robbery with violence contrary to Section 296(2) of the Penal Code. Justice shall not return as bounty if these provisions litigation landscape is not brought to a closure by the representatives of the people in our National Assembly or Parliament. As I pen down this decision of declining to grant any remedies to the Petitioner, it so dreadful to thee. 2. For those reasons the petition is dismissed for want of merit based on the guideline principles discussed elsewhere in this judgment. I make no orders as to costs. 3. Orders accordingly. **DATED, SIGNED AND DELIVERED TRHOUGH CTS AND EMAIL AT THIS 21ST DAY OF AUGUST 2026.** **………………………………………** **R. NYAKUNDI** **JUDGE**