https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7494

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KAJIADO** **MISC. CRIMINAL APPLICATION E047 OF 2021** **JOHN KIMANZI MOINGO………………………………….……APPLICANT** **VERSUS** **REPUBLIC………………………………...………….………. RESPONDENT** **RULING** 1. By his notice of motion dated 11.01.2024, **John Kimanzi Moingo** (hereafter the Applicant) seeks that the court be pleased to grant him a mitigation and resentence hearing. The motion is expressed to brought under Article 165(6) of the Constitution inter alia, and is premised on the grounds on its face, as amplified in the supporting affidavit sworn by the Applicant. Therein, the Applicant deposes that he is a prisoner serving a life sentence at Kamiti Maximum Prison following his trial, conviction and sentence in 2018 for the offence of Murder contrary to Section 203 as read with Section 204 of the Penal Code in **Kajiado HCRC No. 009 of 2016**. 2. Further that, being dissatisfied with the outcome of his trial, he filed an appeal before the Court of Appeal at Nairobi, namely, **Criminal Appeal No. 90 of 2018**, which was dismissed on 4th February 2022. And that having exhausted all available avenues of appeal, the Applicant now moves this court to grant him a mitigation and sentence review hearing. 3. Adding that he has been in custody since the date of his arrest in February 2013, a period exceeding eleven years, and that he has participated in various rehabilitation programs while in prison, all demonstrating genuine efforts towards reform and rehabilitation. He therefore prays that the court considers reviewing his sentence to a more lenient one, and the remaining sentence, if any, be served under community service or probation. 4. The record does not contain any response filed by the Director of Public Prosecutions (DPP) despite notice. **Submissions** 1. The Applicant’s submissions dated 23.09.2025 anchors the application on what he terms as recent jurisprudential and constitutional developments relating to sentencing and the rights of convicted persons. The submissions address two issues, namely, whether the court has jurisdiction to grant the prayer sought, and whether granting such a rehearing as sought would serve the interests of justice. 2. Regarding the foremost question, the Applicant submitted that the court has both the constitutional and inherent jurisdiction to grant a mitigation and resentencing hearing, particularly in circumstances where the initial sentence was mandatory and where individual mitigating factors were not adequately considered. 3. In support of this position, the Applicant relied on the landmark decision of the Supreme Court of Kenya in **Francis Karioko Muruatetu & Another v Republic, Supreme Court Petition No. 15 & 16 of 2015, [2017] eKLR**, (hereafter **Muruatetu I**) to the effect that mandatory death sentences violate Article 50(2) of the Constitution of Kenya. By denying the accused person a fair trial, and especially the right to be heard in mitigation before sentencing. Further reiterating the emphasis by the Supreme Court in that case, that sentencing must be individualized, considering the personal circumstances and the specific facts of each case, and that the trial process does not end upon conviction, but continues through sentencing, which is an integral part of a fair trial. 4. The Applicant further relied on **William Okungu Kittiny v Republic, Criminal Appeal No. 56 of 2013, [2021] eKLR,** where the Court of Appeal reaffirmed the jurisdiction of the High Court to conduct resentencing where the initial sentence was imposed under a mandatory regime, and without consideration of individual mitigating circumstances. And that the Supreme Court decision in **Muruatetu** **I** was binding on all courts and had opened the door for sentence rehearing even in finalized matters. 5. Additionally, the Applicant cited the statement in **Dismas Wafula Kilwake v Republic, Criminal Appeal [2019] eKLR**, that where sentencing did not follow the principles of individualized justice as outlined in **Muruatetu I**, a convict had a right to seek resentencing. The Applicant stating that his sentence before this court preceded the full jurisprudential developments arising from **Muruatetu I** and without the benefit of the legal requirements now recognized for individualized and proportionate sentencing. He asserted that the imposition of a life sentence without consideration of individual factors including age at the time of the offence, personal background, expression of remorse, conduct in custody and potential for reintegration fails the constitutional standards of proportionality, fairness and respect for human dignity as enshrined in Articles 25(c), 28 and 50(2) of the Constitution of Kenya. 6. Concerning the second issue, the Applicant submitted that granting a resentencing and mitigation hearing is not only constitutionally warranted but is also necessary to uphold the interests of justice, consistent with Kenya's evolving jurisprudence on sentencing and human rights. Here reiterating that he is currently serving a life sentence that was imposed without the benefit of a full mitigation hearing, which deprived the sentencing court of critical information regarding his personal background, character, age, conduct in custody and potential for rehabilitation, all of which are essential in determining a just, proportionate and individualized sentence. 7. He called to his aid the decision by the High Court in **Rono v Republic, Criminal Petition E017 of 2024, [2025] KEHC 7357 (KLR)**, which addressed the constitutionality of mandatory indeterminate life sentences and found that such sentences were inherently discriminatory and unconstitutional, especially when such sentences deny offenders the opportunity to mitigate. 8. The Applicant further submitted that denying a resentencing hearing where life imprisonment was imposed without full mitigation not only violates Articles 27 and 28 of the Constitution but also contravenes international human rights standards as affirmed in **Muruatetu** **I** and the Sentencing Policy Guidelines 2023. Because the manifold objects of sentencing should include rehabilitation, deterrence, restorative justice and reintegration which cannot be realized when sentences are mechanically applied or without proper consideration of mitigating factors. 9. Restating his personal circumstances, the Applicant highlighted the fact that he has been in custody for over 13 years since his arrest in February 2013; that during this period he has actively participated in rehabilitative programmes at Kamiti Maximum Prison and earned multiple certifications as annexed; and that he has consistently maintained discipline and good conduct while incarcerated, demonstrating genuine efforts towards reform. 10. In conclusion, the Applicant submitted that a mitigation and resentencing hearing would serve the interests of justice and align with Kenya's evolving jurisprudence on fair trial rights and the dignity of convicted persons. The Applicant therefore prayed that the application be allowed, that he be granted an opportunity to be heard in mitigation and resentencing, and that the court does consider the period already served in custody when exercising its discretion on resentencing. 11. The Respondent did not file submissions. **Analysis and** **Determination** 1. The court having considered the motion dated 11.01.2024, submissions by the Applicant and authorities cited is of the considered view that the motion turns on the question whether the court is possessed of jurisdiction to entertain the Applicant’s plea for mitigation and resentencing hearing. 2. In this regard, the court has perused the record of the initial trial in **Kajiado HCRC No. 009 of 2016** and the judgment of the Court of Appeal in **Nairobi Criminal Appeal No.90 of 2018**. The High Court trial record reveals that the Applicant was jointly tried with another person for the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. At the conclusion of the trial, both were found guilty, convicted and sentenced to life imprisonment on 25th June 2018. Thereafter, the two accused persons preferred an appeal before the Court of Appeal being **Nairobi Criminal Appeal No. 90 of 2018** which appeal was dismissed on 4th February 2022. The Applicant now seeks a sentence rehearing on the grounds articulated in his material in support of the motion. 3. The Applicant has principally anchored his motion on the decision in **Muruatetu I** and to a lesser extent, subsequent emerging jurisprudence in the High Court and Court of Appeal. The Supreme Court by its decision in **Muruatetu I** declared the mandatory nature of the death sentence unconstitutional, to the extent that it deprived courts of discretion in sentencing and denied accused persons the right to mitigation. Consequently, directing that resentence hearings be held for convicts sentenced in murder cases concluded prior to the decision. It is useful to observe here that the Supreme Court has in recent decisions further clarified the proper application of its decision in **Muruatetu I**, to exclude offences other than murder. 4. That said, the Applicant herein was sentenced in the period after the **Muruatetu I** decision, to life imprisonment after conviction for murder. The record before this Court demonstrates that before sentencing, the court (**Nyakundi J**), called for a presentence report and received mitigation by the Applicant and his co-accused before delivering his considered ruling on the sentence. That ruling considered not only the pertinent circumstances of the Applicant, the offence, but also the jurisprudence in **Muruatetu I**. 5. It also is apparent from the judgment of the Court of Appeal dated 4th February 2022 that the Applicant, through his submissions, had raised a challenge concerning the sentence in his appeal before the Court of Appeal. The Court of Appeal in its penultimate and final paragraphs of the judgment stated as follows: **“30. It is noteworthy that the learned Judge called to mind the principle that a mandatory sentence goes against the grain of judicial discretion. He took into consideration this principle, which was underscored by the Supreme Court in *Francis Karioko Muruatetu & another V Republic, (2017) eKLR* where the court had this to say about the mandatory nature of the death sentence under Section 204 of the Penal Code:** ***“Section 204 of the Penal Code deprives the Court of the use of judicial discretion in a matter of life and death. Such law can only be regarded as harsh, unjust and unfair. The mandatory nature deprives the Courts of their legitimate jurisdiction to exercise discretion not to impose the death sentence in appropriate cases. Where a court listens to mitigating circumstances but has, nonetheless, to impose a set sentence, the sentence imposed fails to conform to the tenets of fair trial that accrue to accused persons under Articles 25 of the Constitution; an absolute right.”*** **31. We have considered the circumstances leading to the deceased’s death but find nothing to fault the learned Judge’s conviction of life imprisonment in place of the mandatory death sentence. Having also considered the evidence on record, the written submissions of learned counsel for the appellants and learned State counsel, we find that the appellants’ appeal herein on both conviction and sentence fails and is hereby dismissed in its entirety. Orders accordingly.”** 1. Thus, it is disingenuous for the Applicant to claim, as he has done before this court, that he was denied the benefit of the jurisprudence emanating from **Muruatetu I**, having been sentenced before the full jurisprudence could fully develop. Ex facie, the judgments of the two superior courts reveal that they were fully alive to and reflected upon the dicta in **Muruatetu I** in relation to the Applicant’ s sentence. The question of the sentence is settled. 2. Based on the foregoing, the court takes the view that motion before the court is clearly a misconceived invitation to this court to sit on appeal on the decisions by two superior courts, namely, the life sentence imposed by the High Court, and the judgment of the Court of Appeal upholding that sentence. The invitation is declined; the court has no jurisdiction to entertain the motion dated 11.01.2024 and it is hereby dismissed. **DELIVERED AND SIGNED ELECTRONICALLY AT KAJIADO ON THIS 28TH DAY OF MAY 2026** **** **C.MEOLI** **JUDGE** **In the presence of:** **For the State: Ms. Kihumba** **For the Applicant: Mr. Lumasai** **Applicant: present** **C/A: Lepatei**