https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6702

Kalya v Republic (Petition E280 of 2025) [2026] KEHC 6702 (KLR) (Constitutional and Human Rights) (14 May 2026) (Judgment) Neutral citation: [2026] KEHC 6702 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Constitutional and Human Rights Petition E280 of 2025 RE Aburili, J May 14, 2026 IN THE MATTER OF ARTICLES 22 OF THE CONSTITUTION OF KENYA 2010 AND IN THE MATTER OFALLEGED CONTRAVENTIONS OF ARTICLES 2(1), (6),3(1),10 (2) (b),19,22 (1),25 (a),27 (1), (2), (4),28,29(a), (d) and (f),50,159 (2) (a), 165 (3) (b) (d) OF THE CONSTITUTION AND IN THE MATTER OF SECTION 333(2) OF THE CRIMINAL PROCEDURE CODE CAP 75 LAWS OF KENYA AND IN THE MATTER OF SECTION 203 AS READ WITH SECTION 204 OF THE PENAL CODE CAP 63 L.O.K Between Moses Kiprotich Kalya Petitioner and The Republic Respondent Judgment 1.The Petitioner Moses Kiprotich Kalya is a convict serving a prison term of twenty (20) years at Kamiti Maximum prison, from whence he filed this Petition dated 9th May, 2025 supported by a statement in the name of supporting affidavit which is not sworn before any Commissioner for Oaths or a Magistrate and therefore this Court cannot consider an unsworn affidavit or declaration to be an affidavit or declaration supporting the petition. That said, the petition does not become incompetent for want of a supporting affidavit. This is so, for the reason that my reading of Rule 11 of the Mutunga Rules reveals that filing of a supporting affidavit is permissive as documents could as well be annexed to the petition itself. In this case, no documents are annexed to the unsworn affidavit, and neither are any documents annexed to the petition. I will therefore consider the petition as it is and determine whether the prayers sought are merited. 2.According to the petitioner, he was charged, tried and convicted of the offence of murder contrary to section 203 as read with section 204 of the Penal Code. He was sentenced to serve 20 years imprisonment vide Milimani High Court Criminal Case No. 61 of 2012 on 23/1/2023. That he appealed to the Court of Appeal vide Criminal Appeal No. E079 of 2023, which appeal was dismissed both on conviction and sentence vide judgment rendered on 7th March, 2025. That he has been in prison for now a period of 12 years since his arrest on 13/10/2014. He claims that the time that he was admitted to bail was not accounted for during computation of the sentence imposed on him yet the convicting judge appreciated the fact that the petitioner did not breach the term of bail hence his right to freedom was hampered during that time. 3.In the applicable constitutional provisions, the petitioner cites, material to the petition, Article2 1,2,10,19,20,21,22, 23,24,25,27,28,29, 50(2)(p) which latter provision guarantees every accused person the right to a fair hearing and stipulates that every accused is entitled “p.to 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; andq.if convicted, to appeal to, or apply for review by, a higher court as prescribed by law. 4.The petitioner also cites section 333(2) of the Criminal Procedure Code which provides that subject to section 38 of the Penal Code, every sentence shall be deemed to commence from, and include the whole of the day of, the date on which it was pronounced, except where otherwise provided in the Code, provided that where the person sentenced under subsection (1) has, prior to such sentence been held in custody, sentence shall take into account of the period spent in custody. 5.The petitioner further cites Articles 7 of the ICCPRand 10 of the UN Standard Minimum Rules for the Treatment of Prisoners (Mandela Rules) which prohibit torture, cruel, inhuman or degrading treatment and punishment and respect with humanity for those deprived of their liberty. 6.The petitioner therefore seeks the following reliefs from this Court:a.A declaration that the time that the petitioner was admitted to bond pending the trial in the High Court should be computed as part of the sentence.b.This Hon Court orders that the petitioner is fit to serve a term of years considering his time in remand from 2012 to 2023 as provided under section 333(2) of the Criminal Procedure Code.c.An order, in the alternative, for revision of the petitioner’s case in the interest of justice.d.The court be pleased to make further such other orders as it shall deem fit. 7.In his written submissions dated 16th October, 2025, which he highlighted on 14/4/2026, the petitioner urges that he was on bond during his trial in the murder case but that he could not do anything as he was required to be reporting to the Directorate of Criminal Investigations. That he was on bond for ten years but that he suffered due to the restrictions placed on him such that he could not be employed as his employers could not give him 3 days off to attend to the murder trial. 8.The petitioner cites Jasbir Singh Rai and 3 others v Tarlochan Singh Rai Estate and 4 others [2013] eKLR at paragraphs 111 and 112 where the Supreme Court is said to have held that the court had failed to impose against the petitioner the least sentence available in law at the time of sentencing and that the High Court is empowered to award redress to any person who has suffered such contravention. 9.On whether the petitioner qualifies to benefit from section 333(2) of the Criminal Procedure Code, the petitioner relies on Articles 2(1) and (5) of the Constitution, Article 14 and 26 of the ICCPR and the case of Abolifathi and Isaac Kariuki Thiguku v Republic [2025] eKLR as well as Article 27 of the Constitution on non-discrimination, arguing that in the latter case, the Court took into account the period that the appellant was on bond during his trial. 10.On whether the petition has merit, or whether it is res judicata, the petitioner submits that the respondent did not refer to any law in contending that the petition is an abuse of court process hence this Court should invoke its discretion and grant the reliefs sought and order that the twenty years imprisonment should run from the date of his arrest on 31st November, 2012. The Respondent’s Replying Affidavit 11.Opposing the petition, the Respondent filed a replying affidavit sworn by Ms Njoki Kihara, Principal Prosecution Counsel at the Office of the Director of Public Prosecutions, who deposes that the petitioner herein was together with others charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code vide criminal case no. 61 of 2012 at Milimani High Court and sentenced to serve 20 years on 16th June, 2023,as shown by annexed copy of the said judgment. That the Petitioner did file an Appeal at the Court of Appeal No. 079 of 2023 whereby the same was dismissed on 7th March 2025 and as such, the petition before this Court is Res Judicata. 12.Further deposition is that pursuant to Article 165 (6) of the Constitution, this court lacks jurisdiction to hear and determine this petition since the matter has already been dealt with by the Court of Appeal. Additionally, that this court cannot entertain any further prayer on resentencing as the petitioner already chose to Appeal the conviction and sentence in the Court of Appeal No. 079 of 2023 which noted that the sentence of 20 years was indeed very lenient considering the gravity of the offence and would have enhanced the same had there been a cross appeal or notice of enhancement, thereby dismissing the appeal. 13.According to the respondent, the instant petition is not only misconceived and bad in law but also incompetent as it has failed to set out with reasonable degree of precision that of which the Petitioner complains, provisions said to have been infringed or violated and the manner in which they are alleged to have been infringed or violated as was enunciated in the celebrated case of Anarita Karimi -Versus-Republic (No.1) (1979 1 KLR 154 and Mumo Matemu -Versus-Trusted Society of Human Rights Alliance, Civil Appeal No.290 of 2012(2013). Simply put, that the petition filed herein fails the specificity test. Further, that the petitioner has not demonstrated how the respondent has violated the Constitution of Kenya noting that the petitioner was charged, tried and convicted of the offence of murder. That this court cannot supervise a higher court being the Court of Appeal and revise its orders on appeal and that this petition is thus a clear abuse of the court process and should be dismissed. The Respondent’s Submissions 14.In its written submissions dated 2nd October, 2025 and highlighted orally on 14/4/2026, the Respondent relies on its Replying affidavit dated 18th July, 2025 and urges that the petitioner having exhausted his right of appeal vide an Appeal filed in the Court of Appeal No. 079 of 2023, which appeal was dismissed on 7th March 2025, the petition before this Court is Res Judicata. 15.Further, that this court cannot entertain any further prayer on resentencing as the same was also dealt with by the Court of Appeal in Civil Appeal No. 079 of 2023, which Court had competent jurisdiction and noted that the sentence of 20 years was indeed very lenient considering the gravity of the offence and would have enhanced the same had there been a cross appeal or notice of enhancement, thereby dismissing the same. 16.The Respondent maintained that once the Court of Appeal in Civil Appeal No. 079 of 2023 delivered judgment, this court became functus officio and that this Court cannot therefore quash the decision of the Court of Appeal as this Court lacks jurisdiction to hear and determine this petition since the matter has already been dealt with. 17.Further submission is that the petitioner has not demonstrated how the respondent has violated the Constitution of Kenya noting that he was charged, tried and convicted of the offence of murder and that pursuant to sections 24 and 25 of the Penal Code, punishment by death is lawful. That his Appeal having been dismissed, the petitioner ought to have demonstrated how his rights were violated as per the Constitution which he has failed to do. 18.Additionally, counsel for the Respondent submits that the Petitioner has not set out with precision the manner in which the Respondent has infringed his fundamental rights and freedoms to warrant the intervention of this Court, as was stated i the case of Anarita Karimi Njeru v Republic (No.1)-[1979] KLR 154 and reiterated by the Court of Appeal in Mumo Matemo v Trusted Society of Human Rights alliance [2014] eKLR, that:“…if a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important (if only to ensure that justice is done to his case) that he should set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed, and the manner in which they are alleged to be infringed.” 19.Counsel submitted that section 333(2) of the Criminal Procedure Code was not applicable to this case because the petitioner was released on bond pending trial and that neither has the Petitioner demonstrated that his fundamental rights are violated. Further, that his fundamental rights are not absolute and must be balanced with the rights of others and public interest. Finally, that the petitioner has not indicated the rights which have been breached with clarity. Analysis and Determination 20.I have considered the petition, the response thereto and the respective parties’ submissions. the main issue for determination is whether the petitioner has demonstrated that there was any violation of his fundamental rights as guaranteed under Article 50(2) of the Constitution, to warrant the reliefs sought. 21.A court of law considering the question of whether a sentence imposed by the trial court and upheld by the Court of Appeal is constitutional or not does not start by asking if the punishment was too harsh or too light. That question is important when appealing a sentence. It is not the main issue. The real question is whether the sentence was meted out in a way that upholds the petitioner’s fundamental rights and freedoms as guaranteed by the Constitution. 22.The petitioner has cited Article 50(2) (p) and (q) of the Constitution and asserted that he was not given the least severe punishment as contemplated under the Constitution. He avers that although he was released on bond pending trial, the trial court and the Court of Appeal in sentencing and upholding the imposed sentence violated his right because he was never free at all during the said trial. That he was made to report to the DCI regularly and therefore he could not even get a job to do as no employer could permit him to be away for three days to attend to the criminal trial. 23.He further argues that section 333(2) of the Criminal Procedure Code was not applied to take into account the period that he was on bond, in sentencing him hence this Petition. 24.I find the argument by the petitioner to be very interesting and novel. However, he did not annex to the petition any evidence by way of the order releasing him on bond on conditions that he be reporting to the DCI and how regular the reporting was to be until the trial was completed. He however urges this Court to find that the sentence imposed should have been from the date of arrest and not the date of sentencing. 25.As novel as the argument is, it is important to note that the right to bail pending trial is not an absolute right. The right is guaranteed on condition that the accused person attends the trial as and when required and does not breach any conditions imposed on the bond which conditions may include, non-interference with the witnesses, to attend mention dates, not to travel out of jurisdiction without authority of the Court and to report to the investigative authorities. 26.Those conditions are not unlawful conditions imposed on an accused person, who, by law, is presumed innocent until proven guilty. Once the trial is concluded and the accused person is convicted of the offence charged, the presumption of innocence is dissipated. The convict, however, enjoys the right of appeal to the Court superior to the trial court and in so appealing, he may challenge both conviction and sentence or only the conviction or sentence. 27.On the other hand, when it comes to sentencing, courts are usually careful not to interfere with the discretion exercised by the trial court. Thus, if a trial court has made a decision within its power and imposed a sentence which is lawful but which might be considered to be too lenient, an appellate Court will rarely alter it except where there is an application by the prosecution, for enhancement of the said sentence and where the reasons for enhancement are justifiable in law. It is for this reason that the Court of Appeal in Criminal Appeal No. E079 of 2023 found that the 20 years imprisonment term imposed on the petitioner herein for a conviction for murder was too lenient, but the Superior Court could not do anything about it since the prosecution never applied for enhancement of the said sentence. In such circumstances, the test on the constitutionality of sentences is not about the outcome but about how that sentence was arrived at. In addition, a sentence can be challenged not because of how long it is, but because of how it was decided or the rules that were applied to reach that decision. 28.An example of an unconstitutional sentence is, first, if a sentence is based on a law that is itself unconstitutional; or a repealed section of the law, then the sentence. however lenient it is, may be found to be unconstitutional or unlawful. The Supreme Court in the Francis Karioko Muruatetu & Another v Republic [2017]eKLR made it clear that a law that imposes mandatory death sentence on a murder convict is unconstitution because it does not permit the trial courts to exercise discretion in meting out appropriate sentence, having regard to the circumstances of each case and secondly, that such a law deprives the convicted person an opportunity to mitigate, noting that mitigation can have an impact on the sentence that the convicting Court may impose, in murder cases. It follows that even if the trial Court is lenient, the problem remains if the court’s choices are limited by a law that is not constitutional. 29.Second, is that the right to a fair trial, which is guaranteed by the Constitution also applies to, when a sentence is meted. A convicted person must be accorded an opportunity to mitigate and the convicting Court is expected to take into account those mitigations having regard to the nature of the crime convicted of and the chances of the convict reforming. If the trial Court ignores these factors, the sentence might be challenged for being unconstitutional, no matter how light it may appear. 30.Third, is that sentencing must be based on reason and the law. A court that ignores important considerations or applies irrelevant considerations in sentencing, the sentence may be considered to be unfair and depending on the level of unfairness, it might be against the rule of law and constitutional principles of fairness and reasonableness. 31.Fourth, is that the Constitution protects against punishments that are too harsh or degrading. A sentence can be shorter than the maximum allowed and still be too disconnected from the crime to be okay. In this case it is not the length that is a problem but also the disrespect to human dignity and the rules against cruel, inhuman or degrading treatment. It is for that reason that Article 50(2) (p) and (q) of the Constitution, as cited by the petitioner, guarantees every convicted person the right (p)to 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; and(q)if convicted, to appeal to, or apply for review by, a higher court as prescribed by law. 32.Fifth, is that the Constitution at Article 27 guarantees every person equality before the law and such person has the right to equal protection and equal benefit of the law. Equality under Sub Article 2 includes the full and equal enjoyment of all rights and fundamental freedoms. This principle of equality of all persons before the law means that sentencing must be consistent. If people who committed the same offence under the same circumstances and are tried by the same Court are treated differently without a good reason, this difference can be an unconstitutional discrimination. 33.Finally, sentencing is not a mechanical process. It is an exercise of judicial discretion, having regard to the nature of the offence and as may be stipulated in the law. It must therefore be guided by constitutional values of dignity, being fair and with the objective of aiding the offender to reform. A sentence that ignores these values even if it seems lenient cannot be said to be constitutional. This observation takes into account the mandatory sentences under the Sexual Offences Act, which sentences remain lawful unless declared unconstitutional. 34.It is for the above reasons that even if a court on appeal finds that the sentence imposed was lenient and that therefore the appellate court cannot or could not interfere with the same, a challenge on the constitutionality of that sentence can still succeed. This observation is made within the scope of what an appellate Court can do and does not address the bigger question of whether the sentence imposed was in accordance with the constitutional values and principles. Thus, if the petitioner establishes that his constitutional rights were violated in the circumstances I have described above, the Court may intervene. 35.In the instant case, it is clear that the petitioner was charged with thr offence of murder and was convicted of the said offence. He was sentenced to serve twenty years imprisonment. There is no evidence that he was denied the opportunity to mitigate. Section 204 of the Penal Code mandates death sentence upon being convicted for murder. However, the Francis Muruatetu (supra) decision by the Supreme Court declared that the mandatory death sentence is unconstitutional in so far as it takes away the trial court’s judicial discretion to impose appropriate sentence, having regard to the circumstances under which the offence was committed and that the mandatory death sentence deprives the accused person of the right to mitigate. 36.In the present proceedings, the trial Judge, from the judgment which gave rise to the very detailed judgment on appeal, found and the Court of Appeal upheld the conviction and sentence of 20 years imprisonment in what was decribed as a well planned and executed crime of murder where the petitioner and others strangled a foreign diplomat, Her Excellency, the Ambassador of Venezuela to Kenya, Olga Fonseca Jimenez who was found murdered on 27th July 2012. 37.From the judgment of the two superior Courts, the petitioner was arraigned on 26th November, 2012, four months after the murder. He claims that he was arrested on 31st November, 2012. However, the judgment by R.L.Korir J delivered on 25th January, 2023 in Milimani High Court Criminal Case No, 61 of 2012 shows that he was taken to court on 26th November, 2012. 38.As stated above, there is no evidence availed to this Court to demonstrate that the petitioner was denied the right to mitigate or that the trial judge did not take into account his mitigations before imposing sentence of twenty years imprisonment. 39.The petitioner readily pleads that he was on bond during trial. He however, cunningly, seeks this court’s discretion to find that the period that he was on bond should have been taken into account in meting out sentence. He cites section 333(2) of the Criminal Procedure Code and the case of Oscar Juma Barasa v Republic Bungoma High Court Criminal Appeal No. 78 of 2020 by L.N.Mutende J where the learned Judge in her judgment in an appeal against sentence only, held that the appeal was successful only in so far as the period spent in custody by the appellant was to be taken into account in computing the prison term, a consideration the trial magistrate had ignored. 40.In the view of this Court, the scheme advanced by the petitioner is untenable in law. Section 333(2) of the Criminal Procedure Code is applicable in limited circumstances, namely, at the trial or appellate stage, on sentence revision before the same trial court, or before this Court, where it is demonstrated that an accused person was in custody during the trial period and that the sentencing court failed to take that period into account when computing the sentence imposed, however lenient that sentence may have been. 41.In this case, the petitioner invites this Court to adopt a contrary and a legally unsupported position: that despite having been released on bond throughout his trial for the gruesome murder of a foreign diplomat, the period during which the petitioner/convict herein remained at liberty, but subject to certain reporting conditions, ought nonetheless to be treated as time spent in custody for purposes of sentence computation. This argument is totally misplaced because, having been on bond, with or without conditions such as regularly reporting to the Directorate of Criminal Investigations (DCI), cannot by any means, be equated to being in custody. 42.Moreover, the petitioner has not adduced any evidence to demonstrate that the bond conditions that were imposed on him by the trial court resulted in a violation of any of his constitutional rights. There is no material placed before this Court to show that the petitioner was unable to secure employment while he was on bond, due to the restrictions mandating his reporting to the DCI, that he lost any existing employment because of those restrictions, which, in any event, were not unlawful restrictions or that his freedom of movement was so curtailed as to amount to unlawful restriction. The assertions made by the petitioner that his rights were violated by the failure to consider the period he weas on bond in sentencing him in this regard remain abstract and totally baseless. 43.To accept the petitioner’s argument would, in the view of this Court, be to extend the scope of Section 333(2) beyond its clear intent and to sanction a position that finds no support in law. This Court declines the invitation to do so. 44.Accordingly, I find that the petition dated 9th May, 2025 is without merit and is nothing but an attempt to circumvent established legal principles. The petitioner has not discharged the burden of proving entitlement to the reliefs sought. The petition dated 9th May, 2025 is therefore hereby dismissed with no order as to costs. 45.This file is closed. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 14TH DAY OF MAY, 2026R.E. ABURILIJUDGE