Gathuri v Attorney General & another (Petition E802 of 2025) [2026] KEHC 12466 (KLR) (Constitutional and Human Rights) (3 August 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **MILIMANI LAW COURTS** **CONSTITUTIONAL AND HUMAN RIGHTS DIVISION** **PETITION NO. E802 OF 2025** **IN THE MATTER OF ARTICLE 22(1) OF THE CONSTITUTION OF KENYA, 2010** **AND** **IN THE MATTER OF ALLEGED CONTRAVENTIONS OF ARTICLES 2(1), (5), (6), 25 (a), 27 OF THE CONSTITITION OF KENYA, 2010.** **AND** **IN THE MATTER OF ARTICLES 19, 20, 21, 24, 51 (3) 258 AND 259 OF THE CONSTITUTION OF KENYA, 2010** **AND** **IN THE MATTER OF ARTICLES 23 AND 165 OF THE CONSTITUTION OF KENYA, 2010** **-BETWEEN-** **JAMES MWINGA GATHURI .…………………………….....PETITIONER** **-AND-** **THE HONOURABLE ATTORNEY GENERAL ……... 1ST RESPONDENT** **DIRECTOR OF PUBLIC PROSECUTIONS ………….2ND RESPONDENT** **JUDGMENT** **introduction** 1. The petitioner **James Mwinga Gathuri** was originally convicted of murder under ***Section 203 as read with section 204 of the Penal Code*** in **Milimani HC** ***Criminal Case No. 10 of 2010*** and sentenced to death on 3rd June 2014. He withdrew his appeal from the Court of Appeal as filed vide **COA *Criminal Appeal No. 23 of 2018***to seek resentencing following the Supreme Court’s decision in Francis ***Karioko Muruatetu & Another v Republic [2017] e KLR***, resulting in a resentence of 40 years imprisonment vide ***Criminal Petition No. E282 of 2020*.** **The Petition** 1. The Petition **dated 24th November 2025** seeks the following reliefs: 2. ***A declaration that the sentence of 40 years imprisonment is a degrading punishment for subjecting fouling the filed report of about 67 years on human beings. (sic)*** 3. ***A declaration that the constitutional rights of the Petitioner under Article 19 (2), 21 and 27 of the constitution have been violated for subjecting him beyond the concept of normal life expectancy of human beings.*** 4. ***An effective order be made for the sentence be revised to one of twenty (20) years imprisonment in respect to the concept of normal life expectancy on human beings.*** 5. ***Such other Order(s) as the Court will deem just.*** 6. The Petition is supported by the Petitioner’s Supporting Affidavit in which he deposes that he was originally convicted of murder under Sections 203 and 204 of the Penal Code in Milimani Criminal Case No. 10 of 2010 and sentenced to death on 3rd June 2014. That he withdrew his appeal before the Court of Appeal in Criminal Appeal No. 23 of 2018 to seek resentencing following the Supreme Court’s *Muruatetu* decision, resulting in a resentence of 40 years imprisonment in Criminal Petition No. E282 of 2020. 7. The petitioner avers that he was born on 13th December 1977, making him 37 years old at the time of his sentencing in 2014. He argues that a 40-year term effectively keeps him incarcerated past age 77 which undermines the average "Normal Life Expectancy" in Kenya profiled at approximately 67 years by the World Health Organization in 2018. 8. The Petitioner contends that a sentence exceeding average human life expectancy constitutes degrading punishment and infringes upon his constitutional rights to human dignity under ***Article 28,*** equality and equal benefit of the law under ***Article 27*** and fundamental rights under ***Articles 19 (2) & 21 of the Constitution***. 9. Relying on international norms under ***Article 2 (5) & (6) of the Constitution*** and the case of ***Ali Abdallah Mwanza v. Republic, (2018) eKLR***, the Petitioner submits that he has a right to claim equal treatment before the law just like other convicts and asserts that age must be a key factor at sentencing to ensure fixed terms do not act as *de facto* life sentences without hope of release. 10. It is his case that the 40-year sentence is a degrading punishment because it exceeds Kenya’s national life expectancy profile, and that his rights under ***Articles 19 (2), 21, and 27 of the Constitution*** have been violated. The Petitioner also seeks an order revising his sentence from 40 years down to 20 years imprisonment. 11. There are no responses filed to the Petition. **Submissions** 1. The parties presented oral submissions in court on 15th June 2026. 2. The Petitioner submitted that he was sentenced to death then he applied for resentencing and was resentenced to serve 40 years imprisonment. He submitted that he now seeks a reduction of the 40 years stating that it is excessive as he currently was 49 years old. He submitted that he went to jail when he was 32 years old and prayed to the Court for a reduction of the sentence to 20 years because of life expectancy in Kenya being 67 years. 3. Ms. Ntabo Counsel for the Respondents submitted in opposition to the Petition arguing that she was not sure from the facts when the Petitioner was sentenced and whether he had gone to the Court of Appeal. She opposed the reduction of sentence noting the gravity of the offence of murder and urged that the Court retains the sentence of 40 years. 4. In a rejoinder, the Petitioner submitted that he had filed an appeal before the Court of Appeal but withdrew it and opted for resentencing. On being asked by the Court why he did not file an appeal challenging the 40 years imprisonment imposed on resentencing, he lamented that he was not aware that he could file an appeal for resentencing and asserted that appeals also take long before the Court of Appeal can render a decision. **Analysis and Determination** 1. I have considered the petition and the submissions by both parties and the only issue for determination is ***whether the Petition is merited.*** 2. Before I delve into the merits of this Petition, it is important to address the question of jurisdiction. This is because, it is now well established that jurisdiction is everything. Without it, a court has no power to make one more step. This principle was aptly enunciated in the locus classicus ***Owners of Motor Vessel Lilians “s” versus Caltex Oil (K) Ltd*** ***[1989] KLR 1*** and affirmed by the Supreme Court in **Macharia & another v Kenya Commercial Bank Ltd & 2 others (Application 2 of 2011) [2012] KESC 8 (KLR) (23 October 2012) (Ruling)** where the apex Court stated as follows regarding jurisdiction: - ***“A court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a court of law could only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which was conferred upon it by law. The issue as to whether a court of law had jurisdiction to entertain a matter before it, was not one of mere procedural technicality; it went to the very heart of the matter, for without jurisdiction, the court cannot entertain any proceedings.”*** 1. The High Court’s jurisdiction flows from **Article 165 of the Constitution**. The High Court is equally empowered by **Article 23 of the Constitution** to hear and determine cases of denial, violations, infringements and threats to rights and fundamental freedoms of individuals. In particular, A**rticle 165 (6)** empowers the High Court to supervise subordinate courts and bodies which exercise judicial or quasi-judicial functions. However, this authority does not extend to the superior courts being the Court of Appeal and Supreme Court. 2. The Supreme Court in **Muruatetu II- Muruatetu & another v Republic; Katiba Institute & 5 others (Amicus Curiae) (Petition 15 & 16 of 2015) [2021] KESC 31 (KLR) (6 July 2021) (Directions***)* opened a specific, limited window for convicts serving mandatory death sentences prescribed under Section 204 of the Penal Code to present mitigating circumstances and have their sentences reconsidered by the High Court as the trial court. The Apex Court gave the following directions: ***“9. To obviate further delay and to avoid confusion, the court issued*** ***the following guidelines: -*** ***a. The decision of Muruatetu and the guidelines herein were applicable to sentences of murder under sections 203 and 204 of*** ***the Penal Code only.*** ***b. The Judiciary Sentencing Policy Guidelines were to be revised in tandem with the new jurisprudence enunciated in Muruatetu.*** ***c. 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.*** ***d. 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.*** ***e. 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.*** ***f. An application for re-sentencing arising from a trial before the High Court could only be entertained by the High Court, which had jurisdiction to do so and not the subordinate court.*** ***g. In a sentence re-hearing for the charge of murder, both aggravating and mitigating factors such as the following, would guide the court: -*** ***i. Age of the offender;*** ***ii. Being a first offender;*** ***iii. Whether the offender pleaded guilty;*** ***iv. Character and record of the offender;*** ***v. Commission of the offence in response to gender-*** ***based violence;*** ***vi. The manner in which the offence was committed*** ***on the victim;*** ***vii. The physical and psychological effect of the offence*** ***on the victim’s family;*** ***viii. Remorsefulness of the offender;*** ***ix. The possibility of reform and social re-adaptation of*** ***the offender; and,*** ***x. Any other factor that the court considered relevant.*** ***(h)Where the appellant had lodged an appeal against the sentence alone, the appellate court would proceed to receive submissions on re-sentencing.*** ***(i) The guidelines would be followed by the High Court and*** ***the Court of Appeal in ongoing murder trials and appeals. They would also apply to sentences imposed under section 204 of the Penal Code before the decision in Muruatetu.*** 1. In the present case, it is discernible that the Petitioner already availed himself of that window for resentencing and the High Court exercised discretion and resentenced him to serve forty years imprisonment, substituting the death sentence, vide ***Criminal Petition No. E282 of 2020.*** 2. Once that substitute sentence was rendered, the Court exhausted its statutory and constitutional jurisdiction regarding the resentencing of the Petitioner, it became *functus officio*. 3. Under the doctrine of *functus officio*, a judge or court, having once performed its duty and delivered a final judgment, has no power to re-examine, alter, or reduce the sentence it or another judge of coordinate jurisdiction has passed. In the absence of statutory authority, this Court is prevented under the doctrine of *functus officio* from re-hearing a case where a final decision and judgment have been made. Further, the principle of *functus officio* ensures finality of court proceedings. If courts were allowed to continually revisit or reconsider final orders and review sentences which they have rendered without a legal basis as was the directives from the Supreme Court in the **Muruatetu II**, there would never be finality to a proceeding. 4. I therefore find that this Court lacks jurisdiction to reopen and entertain or interrogate issues of the Petitioner’s sentence, which issues were fully determined with finality before the trial court in *Criminal Case No. 10 of 2010* andfurther reconsidered for resentencing in *Criminal Petition No. E282 of 2020.* 5. The Petitioner having already benefitted from a reduction of sentence based on the Supreme Court’s authority, he cannot now approach this Court once again to seek further redress over the same matter, albeit crafted as a constitutional Petition. 6. Going further, I have considered the crux of the Petitioner’s case, and I find that it is in substance, an attempt to seek a second review of a sentence that has already been judicially commuted. It is axiomatic that this Court cannot sit on appeal against its own decisions or those of another High Court judge as in the case of the judgment in the murder trial. If the Petitioner was aggrieved by the 40-year sentence passed in *Criminal Petition No. E282 of 2020*, his proper legal recourse lay in lodging an appeal to the Court of Appeal, as guided by the 2023 NCAJ sentencing policy guidelines at Clause 4.8.26 Part D which provides: ***D. Right to Appeal a Resentencing Decision*** ***4.8.26 Every offender shall have the right to appeal a re-sentencing ruling to a higher court. There shall only be one right of appeal to a resentencing ruling. This is in view of the fact that in offences other than murder, appeals to the Court of Appeal are only on matters law. Where there has been a revision of a sentence, one cannot apply for re-sentencing***, and not filing a fresh petition in the High Court masking an appeal as a constitutional grievance over life expectancy statistics. He admits that he had filed an appeal and withdrew it to seek a resentence. That meant that he forfeited his right of appeal against the conviction and death penalty and went for resentencing, and therefore he could as well have appealed against the forty years imprisonment imposed. 1. To allow convicts to repeatedly petition the High Court for further reductions of sentence after already benefiting from *Muruatetu* *II* resentencing would create endless litigation, subvert the finality of judicial decisions and lead to an abuse of the court process. 2. Consequently, this Court finds and holds that it is ***functus officio*** and that it is devoid of jurisdiction to review or further reduce the 40-year imprisonment term previously imposed. The Petition is hereby dismissed with no orders as to costs. 3. This file is closed. 4. Orders accordingly. **Dated, Signed and Delivered virtually at Nairobi this 3rd Day of August, 2026** **R.E. ABURILI** **JUDGE**