https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12468

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MACHAKOS PETITION NUMBER **E006** OF 2025 KIOKO KAWEMBE….…………..………………………………PETITIONER VERSUS REPUBLIC……………………………….……………..…….RESPONDENT **JUDGMENT** The petitioner was charged, tried and convicted in Kathimani Senior Principal Magistrate’s court criminal case number 822 of 2011 with the offence of robbery with violence contrary to Section 296(2) of the Penal Code. He appealed to this court vide criminal appeal number 105 of 2014 which was dismissed. He claims to have filed a notice of appeal at the Court of Appeal but he is yet to get any feedback from that court. He has now approached this court with this petition seeking the following orders; 1. This Hon. Court be pleased to issue a declaration that indeterminate sentence of life imprisonment is unconstitutional in so far as it violates Articles 28 and 29(d) of the Constitution by failing to give regard to not only his dignity as human being but also failing to prevent his subjection to inhuman and degrading treatment. 2. This Court be pleased to issue a declaration that indeterminate sentences of life imprisonment is unconstitutional in so far as they violate the inherent right to a fair trial as envisaged under Article 50 of the Constitution. 3. This Court be pleased to issue a declaration that indeterminate sentences of life imprisonment are unconstitutional in so far as they violate Article 2(5) and (6) of the Constitution through their none-compliance with international laws and Instruments in which Kenya is a party to through its ratification. 4. This Court be pleased to issue a declaration that indeterminate sentence of life imprisonment is unconstitutional in so far as it violates the objectives of sentencing as stipulated under the Judiciary Sentencing Guidelines. 5. This Court be pleased to issue a declaration that indeterminate sentence of life imprisonment is unconstitutional in so far as it violates Article 27 of the Constitution owing to lack of legislation catering for remission and or parole. 6. That if the Court prefers a sentence, then the Court to put into account Section 333(2) of the Criminal Procedure Code and no. 2.3.18 of the Updated Sentencing Policy guidelines 2023 which state that sentence should begin from date of arraignment to Court. 7. That this Court be pleased to issue orders that the time the applicant has served since arrest in 2011 is enough for rehabilitation. 8. This Court be pleased to issue a declaration that the petitioner herein is entitled to have his cases reviewed after other persons had benefited who had been sentenced to death of the same offence of robbery. 9. The Court be pleased to make further such other order(s) as it shall deem just. The petition is supported by the petitioner’s affidavit in which he depones that he is seeking orders that the court allows him to file an application for resentencing as other prisoners have benefited in similar cases. He urges that courts in Kenya have pronounced themselves that life and death sentences are unconstitutional. The respondent did not file any response to the petition either by way of an affidavit or submissions. This is despite Mr. Mangare for the respondent appearing before me on 23-02-2026 and assuring me that he would file submissions within three minutes. The petitioner filed his submissions dated 16th January 2026 in which he seems to have abandoned his prayers for declaratory orders perhaps informed by the position that the issue of constitutionality of life sentence has been litigated over and over again up to the highest court in the land. My presumption that the petitioner has abandoned that issue is borne by the way he has cited several authorities which have held the constitutional position about it. The petitioner has on his submissions, cited ***Shaban Salim Ramadhan and others vs the Attorney General; petitions numbers 5 and 6 of 2022*** and argued that the petitioners in the matters got reprieve from their respective courts after the holding therein that gave them orders allowing their trial courts to conduct a resentencing hearing. The petitioner argues that he should benefit from similar favourable orders in view of Article 27 of the Constitution. He has also relied on ***Geoffrey Ngotho Mutiso vs Republic [2010] eKLR*** where the court held that Section 204 of the Penal Code and all the other provisions with mandatory death sentences are antithetical to the constitutional provisions on protection against inhuman or degrading treatment; ***Josephs Kaberia Kahinga & 11 others v Attorney General (full citation not provided)*** where the court held that meting out death sentence in capital offences were unconstitutional and denied the court the opportunity to consider individual circumstances of the offender. It should be noted that the petitioner’s death sentence was commuted to life sentence in a presidential decree. There is no prayer before me challenging or questioning the presidential decree and I do not think that I have jurisdiction to do so if it were to be so challenged. It is therefore not a live matter to this court to discuss the constitutionality of the death sentence imposed on the petitioner by the trial court because the sentence no longer exits. I would distinguish this petition from the ***Shaban Salim*** case cited to me by the petitioner. It is important to clarify that in that case, the court did not hold the mandatory death sentence as unconstitutional. The court in that case held that the petitioners were at liberty to apply to the trial court for resentencing by ordering that; *‘The petitioners be presented before the respective sentencing courts for sentence re-hearing upon appropriate applications being made in that regard in line with Paragraphs 2.2.1, 2.2.2, 2.2.3 and 2.2.4 of the Judiciary Sentencing Guidelines.’* This court did not try the petitioner neither did it sentence him. I have not been informed whether the decision in the cited case is still in force or it was appealed or set aside. It is a decision of a High Court and has the force of the law and is binding on matters before the subordinate courts. In that regard, the petitioner herein was at liberty to rely on and take advantage of that decision and apply before the trial court for resentencing. He did not need the permission or leave of this court to do so. In any event, I think that the issue of constitutionality of mandatory minimum sentences and the right of a convict to apply for resentencing hearing is a live issue in litigation. As observed earlier in this judgment, the petitioner has in his submissions clearly abandoned the prayers seeking declaration in respect of the constitutionality of life imprisonment. He has instead asked this court to declare that the time he has so far spent in custody running from 19th December 2011 which is the date he was arrested is sufficient sentence and if there is any remaining sentence the same be converted to non-custodial because he has reformed and he is remorseful. He has attached to the submissions some academic and occupational certificates showing that he has attended some biblical and adult literacy training. Whereas the above may be relevant while the court is considering revision of a sentence, I must be alive to the fact that the highest court in the land has held that there is nothing unconstitutional with statutory life sentences and that the issue of the nature and extent of sentences is a reserve for the Legislature. The petitioner has leveraged his case on the findings of my colleagues and the Court of Appeal and the Supreme Court of Kenya on the constitutionality of life sentences. In ***Republic v Manyeso [2025] KESC 16 (KLR),*** the Supreme Court of Kenya overturned a decision of the Court of Appeal which had reduced life sentence meted on the respondent to 40 years. In doing so the Supreme Court held as follows; *‘While the Supreme Court appreciated that a life sentence could mean a certain minimum or maximum time to be set by a judicial officer, the Supreme Court made the recommendations to the Attorney General to develop legislation on what constitutes a life sentence. It was up to the legislature to enact legislation on what constituted a life sentence and not the courts……….* *Courts cannot therefore extend their determination to rectifying or amending the statute in question, as this would contravene the doctrine of separation of powers, which delineates the functions of the judiciary, legislature, and executive. Courts must exercise caution when crafting remedies to avoid overstepping their judicial mandate and intruding upon legislative functions by prescribing or enacting amendments. When courts recognize the need for legislative intervention, it is both proper and imperative for them to recommend such measures to the appropriate authorities for adoption.’* Article 163(7) of the Constitution provides that all courts other than the Supreme Court, are bound by the decisions of the Supreme Court. That means that I am bound by the decision of the Supreme Court in the ***Manyeso case*** and as such I cannot depart from it. Simply put, the Supreme Court said that life sentence means life time of the convict. Unfortunately for the petitioner, that issue cannot be re-litigated before this court. Even if I were to find that the petitioner has a meritorious argument in this matter, I must remind myself of the fact that the petitioner’s appeal has been heard before a court of equal and concurrent jurisdiction as me and dismissed. Revisiting the issue of sentencing in this matter would be sitting to review a decision of my colleague which is abhorrent to the law and good practice. In ***Kimotho v Republic [2025] KEHC 12881 (KLR),*** the petitioner had been tried, convicted and sentenced to death for robbery with violence. He appealed to the Court of Appeal which dismissed the appeal then he approached the High Court with a petition similar to the instant one. Honourable Justice A.K. Ndung’u in declining the invitation to revisit the issue of sentencing following the decision in the ***Shaban Salim case*** (supra) held as follows; *‘Moreover, the Petitioner seeks to have this court review the orders of the Court of Appeal which was the last court that gave the orders obtaining in the matter. The law abhors the practice of a Judge sitting to review a judgment or decision of another Judge of concurrent jurisdiction. This is because the rule of the thumb is that courts cannot sit in review/appeal over decisions of their peers of equal and competent jurisdiction much less those courts of higher Jurisdiction than theirs. In the instant case, am invited to interfere with a sentence imposed by the court of appeal.’* Based on the above, I find no merits in this petition and the same is hereby dismissed with no orders as to costs. Dated signed and delivered at Nairobi this **29th** day of **July** 2026. **B.M. MUSYOKI** **JUDGE OF THE HIGH COURT.** Judgment delivered in presence of the petitioner and in absence of the respondent