https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10678

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA** **AT NAKURU** **CRIMINAL REVISION No. E481 OF 2024** **JOSEPH MAINA NDUATI ..……….…………………..…. APPLLICANT** **-VERSUS-** **REPUBLIC…………………………………………...…....… RESPONDENT** **RULING ON REVISION** 1. **Joseph Maina Nduati,** the applicant herein took out an undated motion whereof he sought the following orders inter alia: 2. ***That the honourable court be pleased to certify this matter as urgent and deserving priority in hearing at the first instance*** 3. ***That there is a conflict between section 297(2) of the Penal Code which provides a mandatory sentence of Death for the offence of attempted robbery and section 389 of the Penal Code which provides for a maximum sentence of seven (7) year imprisonment for inchoate offences whose prescribed sentence is Death.*** 4. ***That the ten (10) year sentence imposed by the trial court on the Applicant be reviewed to seven (7) years imprisonment as prescribed by section 389 of the Penal code pursuant to the fair hearing provision in Article 50(2)(p) which provides that an accused has the right to the benefit of the least severe of the prescribed punishments for an offence.*** 5. ***That should the prayed revision be granted that may the period spent in remand custody as from the date of arrest on 04.02.2024 (see the charge sheet) to the time of conviction on 03.10.2024; a duration of 8 months be computed into that sentence and the court be pleased to declare that the sentence runs from the date of arrest 04.02.2024 pursuant to the Court of Appeal’s decision in Ahmad Abolfathi Mohammed & Another [2018] eKLR, Criminal Appeal No. 135 of 2016 and the Constitutional Court’s decision in Jona & 87 Others Vs Republic.*** 6. ***Any other order which the court deems fit in the interest of justice.*** 7. The applicant swore an affidavit he filed in support of the motion. The Director of Public Prosecutions filed grounds of opposition to oppose the application. 8. I have considered the grounds stated on the face of the motion and the facts deponed in the supporting affidavit. I have further considered the grounds of opposition plus the authorities cited. 9. The applicant pointed out that there is a conflict between Section 297(2) of the Penal Code which provides for a mandatory death sentence for the offence of attempted robbery and section 389 of the Penal Code which provides for a maximum sentence of 7 years imprisonment for inchoate offences whose prescribed sentence is death. 10. The applicant urged this court to review the 10 years sentence imposed by the trial court on him to 7 years imprisonment as prescribed under section 389 of the Penal Code. 11. The applicant further urged this court to factor in the sentence the period of 8 months he spent in custody pending trial. 12. In response to the applicant’s application, **Miss Anyumba** learned **Principal Prosecution Counsel** argued that the inclusion of the death sentence under section 297(2) of the Penal Code is an expression of the will of the people in tandem with Article 2 of the Constriction. 13. She further argued that the court should not interfere with such a sentence as to do so wound be against public interest. It is the Respondent’s submission that section 389 of the Penal Code is only applicable where no other punishment is expressly provided for in the penal statute. 14. Having considered the rival submissions and the material placed before this court, it clear to me that the applicant has raised two fundamental questions for the determination of this court. 15. **First,** is whether there is a conflict between section 297(2) and section 389 of the Penal Code. I have already set out the arguments put forward by both sides. The Court of Appeal had the occasion to address itself to a near similar question as that obtaining in this instant matter in **Mulinge Maswili Vs Republic Criminal Appeal No. 39 of 2007** where the Court of Appeal held inter alia: 16. ***That the inclusion of the death sentence under section 297(2) of the Penal Code is an expression of the will of the people in tandem with article 2 of the Constitution and the court’s interference would be against public interest.*** 17. ***That the Kenya Constitution under article 26(3) authorizes derogations to be made from the right to life for legitimate purposes, and such a derogation is lawful as it is reasonably necessary for such purpose under section 297(2) of the Penal Code.*** 18. ***That the supreme court in Petition No. 15 and16 of 2015 (Consolidated) Francis Karioko Maruattu & Anor Vs Republic & Others (2021) Eklr was categorically in its decision as follows: ………“Consequently, we find that section 204 of the Penal code is inconsistent with the Constitution and invalid to the extent that it provides for the mandatory death sentence for murder. For the avoidance of doubt, this decision does not outlaw the death penalty, which is still applicable as a discretionary maximum punishment. We therefore reiterate that, this court’s decision in Muruatetu, did not invalidate mandatory sentences or minimum sentences in the Penal Code, the Sexual Offences Act or any other statute”.*** 19. ***That section 389 of the Penal Code is only applicable where no other punishment is expressly prescribed in the penal statute. The Court of Appeal clarified this position in Mulinge Maswili Vs Republic (Criminal Appeal No. 39 of 2007), where it was stated: The general penalty for offences attempted is given as half of the sentence for the completed offence. There is, however, an exception, regarding those offences which carry the death penalty or life imprisonment. For such offences, the court is given discretion to mete out sentences not exceeding seven years imprisonment, and even for those ones, there is a further exception. For attempted offences for which separate and distinct punishment is provided, section 389, above, would not apply. In the former category are offences like murder contrary to section 203 as read with section 204 of the Penal Code respectively. Such an offence carries the death penalty. The offence of attempted murder does not have a separate distinct punishment. That being so, and because there is no way one can half the death penalty, the trial court has the discretion to mete out a sentence not exceeding seven years imprisonment. In the latter category, namely, the offences attempted which carry a separate and distinct sentence that is where the offence of attempted robbery with violence falls. Parliament in its wisdom considered it essential to provide specific sentences for the offences attempted. To obviate conflict, section 389 of the Penal Code was worded in such a way as to create an exception to the general penalty provided therein. Hence the inclusion of the phrase “if no other punishment is provided”.*** 20. It is therefore the finding of this court that there is no conflict between section 297(2) and 389 of the Penal Code. With respect, I agree with the submissions of Miss Anyumba that section 389 of the Penal Code is only applicable where no other punishment is expressly provided for. 21. In the end the applicant’s application lacks merit. It is dismissed. 22. The applicant has asked this court to factor in, the period he served in remand custody pending trial. The applicant stated that he was in lawful custody for a period of 8 months which period was not factored when meting out the sentence. 23. I have perused the record and it is clear that the applicant was arrested on 4th February, 2024 and was kept in custody until 3rd October, 2024. It is clear he was in lawful remand custody for 8 months. 24. That period should have been factored in the sentence pursuant to Section 333(2) of the Criminal Procedure Code. This court is bound to give credit of that period to the applicant at this stage. The period of 8 months should be deducted from the period of 10 years imposed by the trial court. 25. Consequently, the applicant should serve 9 years 4 months with effect from 3rd October, 2024. **Dated, signed and delivered at Nakuru this 15th day of July, 2026**. **J. K. SERGON** **JUDGE** **In the presence of:** Jamleck/Rutoh C/A Miss Anyumba for the State Applicant, present in person