https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7293

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT VIHIGA** **CRIMINAL PETITION NO E009 OF 2024** **HENRY MULWEYE.…………..……………………………………………….APPLICANT** **VERSUS** **REPUBLIC………………………………………………….…………………RESPONDENT** **RULING** **INTRODUCTION** 1. The Applicant herein was charged with the offence of robbery with violence contrary to Section 296(2) of the Penal Code Cap 63 (Laws of Kenya). He was convicted and sentenced to detention at the President’s pleasure. He indicated that he lodged appeals in the High Court, but the same were never heard. In the same breath, he stated that he never appealed in the High Court or in the Court of Appeal. 2. On 14th October 2024, he filed an undated Notice of Motion application accompanied by a Petition seeking a review of his sentence to a lenient definite sentence considering his mitigation and unique circumstances of the case pursuant to Article 50(2) (p) (q) of the Constitution. He also urged this court to consider the time he spent in remand pursuant to section 333(2) of the Criminal Procedure Code. 3. In his said application that was supported by his Affidavit, he averred that the Presidential pleasure sentence has since been declared unconstitutional, which he had been serving despite the Attorney General having been directed to address the issue in **Aloise Onyango Otieno & 6 Others vs Attorney General & Another Constitutional Petition No. 570 [2017] eKLR**. 4. He further stated that he was arrested when he was sixteen (16) years old, and he urged this court to consider the sentence already served since he was a minor. He further asserted that the sentence violated his rights as a child contrary to Articles 27, 28, 50, and 53 of the Constitution of Kenya. He pointed out that this court had jurisdiction to hear and determine this matter under Article 165 (3) of the Constitution of Kenya. 5. He asked this court to grant him probation orders and to also consider the period that he spent in remand while the trial was ongoing pursuant to Section 333(2) of the Criminal Procedure Code. He cited several cases in his Supporting Affidavit and Petition in support of his case. 6. His undated Written Submissions were filed on 8th September 2025 while those of the Respondent were dated and filed on12th November 2025. The Ruling herein is based on the said Written Submissions that both parties relied upon in their entirety. **LEGAL ANALYSIS** 1. The Applicant placed reliance on **Muruatetu & Another vs Republic; Katiba Institute & 4 Others (Amicus Curiae) (Petition 15 & 16 of 2015) [2021] KESC 31 (KLR) (6 July 2021)** where the court directed that a challenge on the constitutional validity of the mandatory sentences in other capital offences to be properly filed, presented, and fully argued before the High Court and escalated to the Court of Appeal. He also cited **Petition No 5 of 2022 as consolidated with Petition No 6 of 2022 Shaban Salim Ramadhan & Others vs Republic** whereby the court declared the mandatory sentences under Section 296(2) and Section 297(2) of the Penal Code as being unconstitutional. 2. He also invoked Paragraph 4.8.16 of the Sentencing Policy Guidelines, 2023, which provides that a resentencing application could be made after a sentence had been meted out and the High Court or the Court of Appeal had not considered the mitigating and circumstances of the case. 3. He submitted that Paragraph 4.8.18 of the Sentencing Policy Guidelines provided that re-sentencing cases should be handled by the Sentencing Court, while Paragraph 4.8.26 of the Sentencing Policy Guidelines stated that every offender would have the right to appeal a re-sentencing ruling to a higher court. 4. He cited Articles 21(1)(2)(4)(a), 22(1)(2)(b), 23, 25(a)(c), 26(1)(3), 27, 28, 48, 50(2)(p)(q) of the Constitution. He asserted that his present Petition was predicated on Articles 22 (1) and 23(1) of the Constitution, which provides that any person could institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights had been denied, violated, infringed or threatened. 5. He submitted that the Presidential Pardon (PP) **(sic)** sentence imposed on him was a cruel, inhuman, and degrading punishment, and it violated his rights. He stated that the sentence was contrary to Article 28, which provided for the right to dignity, and Article 29 (d) and (f) of the Constitution, which guaranteed a person protection from physical or psychological torture and protection from cruel, inhuman, and degrading treatment or punishment. It added that the nature of the sentence did not provide the prisoner with an avenue for review of the sentence. He argued that the indeterminate sentence was contrary to Article 50 (2) of the Constitution, which provides for the right to a fair trial. 6. He was emphatic that even though he exercised his right to mitigate, the same would not have been considered, given that the law did not allow the exercise of discretion on the part of the court. 7. He urged this court to be persuaded by the holdings in the cases of **Omukanga vs Republic (Criminal\_Appeal\_260 of 2019) [2023] KECA 430 (KLR)**, amongst other cases where indefinite sentences were reduced to definite sentences. He also relied on the case of **Manyeso vs Republic (Criminal Appeal 12 of 2021) [2023] KECA 827 (KLR)**, where the court declared the sentence he was serving unconstitutional. 8. He pointed out that he had been in prison for twenty (20) years, having been arrested in 2004, that he had undergone sufficient rehabilitation programmes, and had paid for his offence. He expressed remorse and stated that he had been reformed. He asserted that sentencing was not only to be used for retribution and protection of the community but also to rehabilitate offenders. In his Petition, he had referred to the mandate of prisons as “Kurekebisha na haki” which means “to reform and justice.” 9. In this regard, he placed reliance on Article 2(6) of the Constitution, which provided that any treaty or convention ratified by Kenya would form part of the law of Kenya under the Constitution. He referred this court to Article 10(3) of the International Covenant on Civil and Political Rights of 1996, which stipulated that the penitentiary system was to comprise treatment of prisoners whose primary aim was for their reformation and social rehabilitation. 10. He reiterated that he was arrested when still a minor at the age of sixteen (16) years old and that being in prison was a breach of Article 53 (1) (f) (i) & (ii), (2) of the Constitution which stated that every child has the right not to be detained, except as a measure of last resort, and when detained, to be held for the shortest appropriate period of time. He was emphatic that he suffered prejudice since his rights as a minor were violated both during the trial and after the trial. 11. He urged this court to consider that he was a first-time offender, that he had been in prison for a period of twenty (20) years, that he was a family man, and he had taken rehabilitative programmes offered in the correctional facility, as was evident in the attached documents. He urged this court to hold that the period of twenty (20) years that he was in lawful custody was sufficient. 12. He also urged this court to consider the period he spent in custody during trial pursuant to Section 333(2) of the Criminal Procedure Code, the holding in **Ahamad Abolfathi Mohammed & another vs Republic [2018] eKLR,** and the case of **Vincent Sila Jona & 87 others vs Kenya Prison Service & 2 others (Petition 15 of 2020) [2021] KEHC 457 (KLR.** 13. In its response, the Respondent invoked Articles 50(2)(q), (6) and 165 of the Constitution of Kenya and submitted that the Petitioner had no pending appeal and, hence, this court could hear his resentencing application. It cited the case of **Muruatetu & Another vs Republic; Katiba Institute & 4 Others (Amicus Curiae)** (Supra) where it was held that the High Court could entertain an application for re-sentencing upon being satisfied that the appeal at the Court of Appeal had been withdrawn. It, however, added that the decision in **Muruatetu & Another vs Republic; Katiba Institute & 4 Others (Amicus Curiae)** (Supra) did not outlaw the death sentence, which was still applicable as a discretionary maximum sentence. 14. It asserted that in considering the said decision and Sections 216 and 329 of the Criminal Procedure Code, the Petitioner was not given an opportunity to mitigate in the Trial Court before sentencing. It urged this court to consider the circumstances of the case and determine the appropriate sentence guided by the Judiciary Policy Sentencing Guidelines. 15. The Petitioner herein was charged with the offence with robbery with violence. Section 296 of the Penal Code Cap 63 (Laws of Kenya) provides as follows:- 16. Any person who commits the felony of robbery is liable to imprisonment for fourteen years. 17. 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. 18. Notably, the Trial Court did not sentence the Petitioner to death for the offence of robbery with violence. It did not also punish him under the provisions of Section 191(1) of the Children Act, 2001 (now repealed), which existed when it sentenced and convicted him. The said Section 191 (1) of the Children Act (now repealed) stipulated as follows:- **“In spite of the provisions of any other law and subject to this Act, where a child is tried for an offence, and the court is satisfied as to his guilt, the court may deal with the case in one or more of the following ways:** **a)By discharging the offender under section 35(1) of the Penal Code (cap. 63).** **b)By discharging the offender on his entering into a recognizance, with or without sureties;** **c)By making a probation order against the offender under the provisions of the Probation of Offenders Act (cap.64);** **d)By committing the offender to the care of a fit person, whether a relative or not, or a charitable children’s institution willing to undertake his care;** **e)If the offender is above ten years and under fifteen years of age, by ordering him to be sent to a rehabilitation school suitable to his needs and attainments;** **f)By ordering the offender to pay a fine, compensation or costs, or any of all of them;** **g)In the case of a child who has attained the age of sixteen years dealing with him, in accordance with any Act which provides for establishment and regulation of borstal institutions;** **h)By placing the offender under the care of a qualified counsellor;** **i)By ordering him to be placed in an educational institution or vocational training programme;** **j)By ordering him to be placed in a probation hostel under provisions of the Probation of Offender Act (cap. 64);** **k)By making a community service order; or** **l)In any other lawful manner.”** 1. It was evident that the Petitioner was a minor when he was convicted and sentenced. The Trial Court which was bound by the provisions of Section 191(1) of the Children Act as aforesaid and hence, ought not to have imprisoned the Petitioner under Presidential Pleasure. Indeed, that punishment amounted to a matter of last resort as provided in Section 20(7) of the Children Act, which stipulates that:- **“The detention of a child under this Act or any other written law shall be a matter of last resort and in conformity with Article 53 (f) of the Constitution.”** 1. Detention of the Petitioner herein for an indefinite period deprived him of the right to be treated with human dignity, as he was forgotten in the dungeons. There was no mechanism to review his indefinite sentence. For that reason, this court found and held that as the sentences that persons who had been imprisoned under Presidential pleasure were indefinite with no procedure for review and were condemned to prison for the rest of their lives were, thus unconstitutional and violated, infringed and contravened the rights of the Petitioner herein as stipulated in Article 53 of the Constitution of Kenya, Section 8 of the Children Act and Best Consideration No 18 of the First Schedule of the Children Act. 2. Article 53 of the Constitution of Kenya states as follows:- **“Every child has the right—** **(d)to be protected from abuse, neglect, harmful cultural practices, all forms of violence, inhuman treatment and punishment, and hazardous or exploitative labour;** **(f)not to be detained, except as a measure of last resort, and when detained, to be held—** **(i)for the shortest appropriate period of time; and** **(ii)separate from adults and in conditions that take account of the child’s sex and age.** **(2)A child’s best interests are of paramount importance in every matter concerning the child.** 1. Further, Section 8 of the Children Act Cap 141( Laws of Kenya) states that:- **“In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies—** **(a)the best interests of the child shall be the primary consideration;** **(b)the best interests of the child shall include, but shall not be limited to the considerations set out in the First Schedule.** **(2)All judicial and administrative institutions, and all persons acting in the name of such institutions, when exercising any powers conferred under this Act or any other written law, shall treat the interests of the child as the first and paramount consideration to the extent that this is consistent with adopting a course of action calculated to—** **(a)safeguard and promote the rights and welfare of the child;** **(b)conserve and promote the welfare of the child; and** **(c)secure for the child such guidance and correction as is necessary for the welfare of the child, and in the public interest.** **(3)In any matters affecting a child, the child shall be accorded an opportunity to express their opinion, and that opinion shall be taken into account in appropriate cases, having regard to the child’s age and degree of maturity.** 1. In addition, Section 20(2) of the Children Act stipulates as follows:- **“Children deprived of liberty, detained or held in custody or committed to an institution shall be held separate from adults in facilities, including transportation facilities, appropriate to their special needs and age.”** 1. Best Interest Consideration in the First Schedule of the Children Act further provides that:- **“Any other factor which may have a direct or indirect effect on the physical and psychological well-being of the child.”** 1. In the case of [MMM vs Republic [2014] KECA 253 (KLR)](https://new.kenyalaw.org/akn/ke/judgment/keca/2014/253/eng%402014-10-17)**,** the Court of Appeal directed that the Appellant therein be released forthwith for having been sentenced to death as opposed to having been punished under Section 191 (1) of the Children Act, 2001 (now repealed). The same case obtained for the Petitioner herein. He had been incarcerated for twenty (20) years and in the company of adults at maximum security prisons, which definitely affected his psychological and physical welfare. 2. Going further, even if this court were to have found the Petitioner to have satisfied this court that he ought to have been considered for re-sentencing under normal circumstances, taking the remission of one-third (1/3) into consideration, this court would have found that he had completed his sentence. 3. This court was re-sentencing persons who had been sentenced for robbery with violence on the basis of the case of **Mbugua & 9 Others vs Attorney General & 3 Others (Constitutional Petition E002 & E003 of 2024 (Consolidated)) [2025] KEHC 1248 (KLR) (24 February 2025) (Judgment)**, where 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 enjoy that right. 4. In that case, this court observed that in the words of Article 27(1) of [the Constitution](https://new.kenyalaw.org/akn/ke/act/2010/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 were not to be deprived of equal benefit from the law as the non- capital offenders. This court was reviewing the death sentences and meting out sentences ranging between thirty (30) and forty (40) years in cases of robbery with violence. 5. The provision of Section 333(2) of the Criminal Procedure Code Cap 75 (Laws of Kenya) regarding the period he had spent in remand while his case was ongoing during trial was, therefore, rendered moot. **DISPOSITION** 1. For the foregoing reasons, it was this court’s decision that the Petitioner’s Petition was merited and the same be and is hereby allowed. His conviction be and is hereby upheld as it was safe. However, his sentence be and is hereby set aside as the same was unlawful and unsafe. 2. It is hereby directed that the Appellant be and is hereby set free and released from custody forthwith unless he be held for any other lawful cause. 3. It is so ordered. **DATED** and **DELIVERED** at **VIHIGA** on this **28th** day of **May** 2026 **J. KAMU** **JUDGE**