https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9001

Ombima v Republic (Criminal Petition E004 of 2025) [2026] KEHC 9001 (KLR) (25 June 2026) (Judgment) Neutral citation: [2026] KEHC 9001 (KLR) Republic of Kenya In the High Court at Vihiga Criminal Petition E004 of 2025 JN Kamau, J June 25, 2026 Between Kepher Kavaya Ombima Applicant and Republic Respondent Judgment 1.The Petitioner 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 death. 2.He lodged an appeal in Kakamega High Court Criminal Appeal No196 of 2012. The same was dismissed. He lodged a second appeal Criminal Appeal No 54 of 2020 at the Court of Appeal but he withdrew the same. 3.On 25th March 2025, he filed an undated Chamber Summons application seeking for resentencing to an appropriate sentence. In his said application that was supported by his Affidavit, he stated that he was approaching this court based on the judgment in Vihiga High Court Petitions No E002 and E003 of 2024. 4.He urged this court to consider his mitigation in determining an appropriate sentence to substitute the current one. He also urged the court to review the death sentence and impose a lenient sentence in line with Article 25(c), 27(1) and 28 of the Constitution. He averred that during incarceration, he had engaged himself in various rehabilitation programs and that he was therefore reformed. 5.He filed two (2) sets of Written Submissions. The first set of Written Submissions was filed on 22nd January 2026 while the second set was dated and filed on 7th February 2026. He had raised similar issues in both sets of submissions. Although the Respondent had informed the court that it had filed Written Submissions, the submissions were not on record. They were not also in the CTS portal. The Ruling herein was, therefore, based on the Petitioner’s said Written Submissions. Legal Analysis 6.The Petitioner invoked Articles 25 (a) (e), 27(1) (2), 28 and 165 (3)(5)(6)(7) of the Constitution of Kenya, 2010 and Section 362 of the Criminal Procedure Code. He placed reliance on Petition No E002 and E003 of 2024 at Vihiga (full citation not provided), Elijah Mugo Murimi vs (sic) High Court Criminal Review No E099 of 2022 and David Otiato vs Republic Petition No E008 of 2024, where in the latter two (2) cases, the courts substituted life sentences under Section 296(2) substituted with twenty five (25) years’ imprisonment. 7.He pointed out that his death sentence was commutated to life under Presidential Pleasure. He further stated that for the period of sixteen (16) years that he had been in prison, he was living peacefully with his fellow inmates and prison authority while engaging himself in various rehabilitation-based programmes. He averred that he was a changed person, fully rehabilitated and could easily reintegrate back to the society. He pleaded with the court to substitute the indeterminate sentence based on the fact that he was a first- time offender and that he was in custody throughout the trial and he promised to never engage in any crime. He relied on the case of Timothy Kosgei vs Republic (2020) eKLR without highlighting the holding. 8.He contended that at the time of the commission of the offence, he was not aware of the consequence of the same and being ignorant, he had acted out of peer pressure, but that he was now aware of the same. He pleaded with this court to be lenient on him and asked it to consider the terms, “repent, reform, forgiveness, reconciliation” that were used to re-associate the disassociating families from all walks of life (sic). 9.He contended that he was the sole breadwinner of his family and his continued incarceration rendered their lives destitute. He asked this court to consider that he was mature enough, aged fifty-eight (58) years old, and thus, urged the court to give him a second chance in life so that he could achieve his personal goals. 10.He submitted that this court had the jurisdiction to review subordinate and superior court decisions as was held in the case of Protus Buliba Shikuku vs Attorney General (KLR citation not given). He relied on several cases which he did not give the citations among Regan Muriithi vs Republic to argue that sentencing was a function of courts and not that of legislature. He submitted that every person, without exception, was entitled to equality and uniformity of sentences and equal benefit of the law as was provided in Article 27 of the Constitution. 11.In the case of Mbugua & 6 Others vs Attorney General & 3 Others (Constitutional Petition E002 & E003 of 2024 (Consolidated)) [2025] KEHC 1248 (KLR) (24 February 2025) (Judgment), 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 enjoyed that right. 12.It recognised that under Article 27(1) of the 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 had to derive equal benefit from the law as the non- capital offenders. 13.The court’s decision was in line with the directions of the Supreme Court on 6th July 2021 in Francis Karioko Muruatetu and Another vs Republic [2017] eKLR (commonly now known as Muruatetu II) that the question of constitutionality of the death sentence in robbery with violence cases ought to commence at the High Court and thereafter escalated to the Court of Appeal, if necessary. It rendered itself as follows:-“46.To clear the confusion that exists with regard to the mandatory death sentence in offences other than murder, we direct in respect of other capital offences such as treason under section 40 (3), robbery with violence under section 296 (2), and attempted robbery with violence under section 297 (2) of the Penal Code, that a challenge on the constitutional validity of the mandatory death penalty in such cases should be properly filed, presented, and fully argued before the High Court and escalated to the Court of Appeal, if necessary, at which a similar outcome as that in this case may be reached. Muruatetu as it now stands cannot directly be applicable to those cases (emphasis court).” 14.In the case of Ramadhan & 8 others v General & another (Petition 5 of 2022 & Constitutional Petition 6 of 2022 (Consolidated)) [2024] KEHC 1173 (KLR) (6 February 2024) (Judgment), Sewe J looked at the mandatory nature of the death sentence under Section 296(2) of the Penal Code and declared it unconstitutional. She further directed that the petitioners be presented before the respective sentencing courts for sentence re-hearing upon appropriate applications 15.In the case of Mbugua & 6 Others vs The Hon Attorney General (Supra) as consolidated with Alfred Eyase Kinamundu & 2 Others vs the Hon Attorney General & Others (Supra), this court looked at the aspect of re-sentencing of persons who had been convicted under Section 296(2) and Section 297(2) of the Penal Code and rendered itself as follows:-“67.The purpose of incarceration is rehabilitation and reformation of prisoners. It was psychological torture for a prison to take numerous courses to improve himself or herself in prison but never use those skills in the society. Indeed, learning of skills had the purpose of easing the integration of prisoners back into the society. Life imprisonment denied convicts who were on life sentence hope for a better future. It was discriminatory that all convicts had hope of going home other than those who had been convicted of the offence of robbery with violence and attempted robbery with violence. There had to be a determinate period within which a person had to atone for their sins.” 16.The long indeterminate incarceration while undergoing rehabilitation programs without the prospect of being released was in the considered opinion of this court a blatant violation of the Petitioners’ right to dignity contrary to Article 28 of the Constitution of Kenya. 17.For those who had been convicted and did not have the benefit of mitigating before being sentenced such as the Petitioners herein, they had a reprieve in Article 50(2) of the Constitution of Kenya which sets out some of the principles that were considered to constitute fair trial. One of these principles was the right to lodge an appeal or apply for review in a higher court, if convicted as stipulated in Article 50 (2) (q)) of the Constitution of Kenya. 18.Such mitigation, which would include the behaviour while in prison and proof of reformation and possibility of reintegration in the society which would enable an appellate and/or review court have a holistic view of the case. During appeal or review of a case, a higher court would have had all the facts and circumstances of the accused on record to enable it assess the appropriate sentence in case there was merit for a sentence reduction. 19.In this regard, it found that applicants seeking re-sentencing ought to file documents to support their mitigating factors. These documents could include certificates of programmes they had undergone in prison leading to their rehabilitation and recommendation letters from the In charges of prisons. 20.This court noted that appellants who included Francis Karioko Muruatetu in the Court of Appeal case of Gachanja & 7 Others (Criminal Appeal 51 of 2004) [2011] KECA 402 (KLR) (20 May 2011) Judgment were re-sentenced by the High Court on 16th December 2019 in Misc Criminal No 394 of 2017 consolidated with Misc Criminal Applications Nos 614, 28, 560, 589, 590 and 586 of 2018. 21.In this regard therefore, this court recognised that as it had both original and appellate jurisdiction to hear criminal and civil cases as provided in Article 165(3)(a) of the Constitution of Kenya and further it could review the decision of the lower court as provided under Article 50 (2) (q) of the Constitution of Kenya, it did not have to send the lower court file back to the lower court for re-sentencing. 22.The Petitioner had already filed a Recommendation letter from the prison authority and annexed various certificates. To avoid further delays in this matter, this court found it prudent to consider his mitigation and re-sentencing as it already had the proceedings of the Trial Court. It determined that the period that he spent in remand while the trial was on-going pursuant to Section 333(2) of the Criminal Procedure Code Cap 75 (Laws of Kenya) would be considered at the time of re-sentencing. Disposition 23.For the foregoing reasons, the upshot of this court’s decision was that the Petitioner’s undated Chamber Summons application that was filed on 25th March 2025 was merited and the same be and is hereby allowed in the following terms:-a.That the Probation Office to file a Pre-Sentence Report by 27th July 2026.b.That the Petitioner be and is hereby directed to appear before this court for mitigation and sentencing on 1st October 2026 at 10.30 am. 24.It is so ordered. DATED AND DELIVERED AT VIHIGA THIS 25TH DAY OF JUNE 2026J. KAMAUJUDGE