https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9247

Kigondu v Attorney General & another (Petition E533 of 2024) [2026] KEHC 9247 (KLR) (Constitutional and Human Rights) (30 June 2026) (Judgment) Neutral citation: [2026] KEHC 9247 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Constitutional and Human Rights Petition E533 of 2024 RE Aburili, J June 30, 2026 Between Joseph Kairu Kigondu Petitioner and Attorney General 1st Respondent Director of Public Prosecutions 2nd Respondent Judgment 1.In his petition dated 2nd October, 2024, the petitioner seeks orders urging this court to find that his petition is brought in the public interest under Article 22(1) 2(b) (c) of the constitution; that for the interest of justice the court to exercise its inherent powers to substantially do justice to the petitioner and come with a different inference rather that the earlier one, taking into account the period spent in custody; that the petitioner wishes to be present during the hearing of his petition and that this court may be pleased to make such other plausible orders that it deems fit for expeditious conclusion of this case.[the petitioner was granted his wish to be present during the hearing of the petition as he appeared virtually from the KAMITI maximum Prison]. 2.The petitioner pleads that he is a convict now serving life imprisonment for the offence of robbery with violence. That he was tried and convicted by the lower court and sentenced to serve ten (10 years imprisonment. He was aggrieved by the conviction and sentence. He appealed to the High Court. The High Court dismissed his appeal and enhanced the sentence to death sentence. He appealed to the Court of Appeal and the Court of Appeal equally dismissed his appeal and upheld the conviction and the enhanced sentence by the High Court. 3.That he then filed several other petitions which he has not disclosed in his petition, seeking for sentence reduction but that the High Court has dismissed all those applications hence, this constitutional petition. He relies on several decisions including the Francis Muruatetu case, Shaban Salim Ramadhan & others v Republic Constitutional Petition No. 5 consolidated with Petition 6 of 2022 in a judgment rendered by Olga Sewe J to the effect that the mandatory nature of death penalty as provided for under Section 296(2) and 297 (2) of the Penal Code is unconstitutional. 4.He further relies on Makumbi Subui Wanyeso vs R CRA E110/2022 at Mombasa Court of Appeal where the court is said to have held that the Attorney General should take legislative measures to facilitate periodic review of sentences for convicts who are either over 70 years of age or those who have served sentences of over 20 years imprisonment with a view to determine whether their continued incarceration is still justified or legally tenable. [No such measures are in place yet]. 5.The petitioner also relies on the case of Evans Nyamari Ayaco Vs r CRA 22/2018 at Kisumu where The Court of Appeal is said to have held that life imprisonment does not mean natural life of the convict but translates to thirty years imprisonment. He argues that the above decisions are of universal application and so, would be enforced and enjoyed by other similar litigants. 6.He argues that to hold otherwise offends Article 27 (1) (2) (4) of the Constitution on the right to equal protection and benefit of the law. In his supporting affidavit, he deposes that he has been in custody for 29 years hence he should be given an opportunity to be of value to himself and to the society considering the skills that he has acquired while in prison. Further, that he is remorseful. 7.The petitioner discloses that he was convicted vide Cr. Case No. 239/95 at Nairobi CM’s court and sentenced to serve 10 years by G.W Mwangi P.M, he appealed to Nairobi HCR. Appeal No. 1383 of 1997 where Ang’awa J. enhanced his 10 years imprisonment to death penalty and that his appeal to the Court of Appeal vide CRA 108/1999 at Nairobi was dismissed. 8.He then filed Misc. Cr. Appeal No. E335/2024 which was struck out by Kimondo J on 16/9/2024. That currently he is serving life imprisonment after death sentence was commuted to life imprisonment by President Mwai Kibaki. That he is now aged 66 years after 29 years in prison. 9.In his “replying affidavit” though not sworn, dated 20/3/2025 the petitioner focusses on the Muruatetu case insisting that it applies to his case despite the directions by the Supreme Court clarifying the decision, arguing that death sentence under Sections 204 and 296(2) and 297 of the Penal Code is the same hence this court has jurisdiction to hear and determine his petition, noting that he was never given the opportunity to mitigate just as it was the case with Muruatetu. 10.The 2nd respondent opposed the petition and filed grounds of opposition dated 15/11/2024 contending that the Supreme Court did not invalidate death sentence in the Muruatetu case hence the petitioner had misinterpreted the law. That death sentence is lawful and is the means by which the state can limit the right to life. 11.That the petition fails the test in Anarita Karimi Njeru Vs Republic case and that this court lacks jurisdiction to determine the petition as the issue of resentencing was heard and determined by the Court of Appeal in Joseph Kagondu & another V Republic [2000] eKLR. 12.The petition was heard orally on 11/5/2026. The petitioner acting in person, submitted relying on his detailed petition and written submissions that he had filed many petitions which had been dismissed. That he was jailed for life, that he has been in jail for 30 years and was 35 years when he was jailed, now he is 67 years, that his appeals were all dismissed after he challenged a 10-year prison sentence which was enhanced to death sentence by the High Court and the Court of Appeal upheld the death sentence which was later commuted to life imprisonment. He prayed for sentence reduction as he had been in prison for long. 13.Mr. Maatwa counsel for the 2nd respondent opposed the petition relying on his grounds of opposition dated 15/11/2024 and arguing that this court lacks jurisdiction to entertain the question of resentencing as the petitioner had exhausted all appeal mechanisms. He urged this court to dismiss the petition. 14.In a rejoinder, the petitioner submitted that the outgoing judge had asked the respondent’s counsel to find out what appropriate sentence to be meted out to the petitioner as per what other courts were giving for similar offences. Analysis and Determination 15.I have considered the petition as filed and argued for and against. The issues for determination are whether this court has jurisdiction to hear and determine the petition and secondly, depending on the answer to issue 1 above, whether the petition has merit. 16.On jurisdiction, it is now well established that jurisdiction is everything without which a court of law acts in vain. This principle was espoused in the locus classicus Owners of Motor Vessel Lilians “s” versus Caltex Oil (K) Ltd and affirmed by the Supreme Court in Macharia & another v Kenya Commercial Bank Ltd & 2 others (Application 2 of 2011) [2012] KESC 8 (KLR) (23 October 2012) (Ruling). In the latter case, the apex Court stated as follows regarding jurisdiction:“A court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a court of law could only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which was conferred upon it by law. The issue as to whether a court of law had jurisdiction to entertain a matter before it, was not one of mere procedural technicality; it went to the very heart of the matter, for without jurisdiction, the court cannot entertain any proceedings. 17.In the instant case, the petitioner was convicted for the offence of Robbery with Violence and sentenced to serve 10 years imprisonment. He challenged the conviction and sentence. He lost the battle as the High Court on appeal enhanced the term sentence to death Penalty. An appeal to the Court of Appeal was dismissed. Later, death sentence was commuted by the President to life imprisonment. He applied for resentencing but his application was dismissed by Kimondo J. He has brought this petition on the basis of Muruatetu case asserting that death sentence is unconstitutional and that life imprisonment should be interpreted to mean 30 years as was held by the Court of Appeal at Mombasa Court of Appeal. 18.Before I discuss the application of the now famed Muruatetu decision, it is important to note that the life imprisonment was not imposed by the courts and therefore this court cannot reverse the commutation absent evidence that the president acted without jurisdiction or outside his constitutional or statutory mandate in commuting death sentence to life imprisonment for the petitioner death row convict. Secondly, is that the petitioner is not on death row as was initially sentenced by the High Court which enhanced the 10-year jail term to death penalty which is stipulated in section 296(2) of the penal Code. 19.I therefore find that the decision cited by the petitioner which was on appeal in Ayako v Republic (Criminal Appeal 22 of 2018) [2023] KECA 1563 (KLR) (8 December 2023) (Judgment) and which heavily relied on the Muruatetu reasoning is inapplicable to this case where life imprisonment was not imposed by the trial court, but was a commutation by the President. Additionally, there is no challenge on the powers of the President to commute death sentences to life imprisonment and therefore this Court cannot act in a vacuum. 20.Significantly, is the fact that the Ayako case went all the way to the Supreme Court of Kenta vide Republic v Ayako (Petition E002 of 2024) [2025] KESC 20 (KLR) (11 April 2025) (Judgment). In a decision rendered on 11th April, 2025, the Supreme Court held that Courts do not have the Jurisdiction to substitute a life sentence with a sentence of 30 years imprisonment. The Supreme Court, after reviewing the record from the trial Court to the Appellate Court on the question of whether the life imprisonment is lawful and constitutionally valid, the Supreme Court held that:“ 39.In the circumstances, we agree with the appellant that the Court of Appeal assumed original jurisdiction over the interpretation and application of the Constitution, a mandate of the High Court under article 165(3)(d) of the Constitution. In stating so, we reiterated In the Matter of the Interim Independent Electoral Commission (Applicant) (Constitutional Application No. 2 of 2011) [2011] KESC 1 (KLR), that the High Court has the mandate to interpret the Constitution, while the Court of Appeal and the Supreme Court have appellate jurisdiction over the same matters having been resolved by the High Court at first instance. Equally, in the Republic v Mwangi case (supra) we held that before courts can consider the constitutionality or legality of minimum sentences and mandatory sentences, the issue must first have been canvassed and escalated through the proper channels. 40.Even if we were to agree with the respondent that the constitutionality of a sentence is a matter of law, in the present context, it would still have been subject to adjudication by the High Court as the court of first instance. To this end, this court has in a myriad of cases underscored its respect and confidence to the competence of the courts in the judicial hierarchy to resolve disputes. See Ngoge v Kaparo & 5 Others (Petition No. 2 of 2012) [2012] KESC 7 (KLR). 41.Arising from the foregoing, it is clear, therefore, that a purported “consent” of parties does not confer jurisdiction upon a court of law. Likewise, since we have now established that the Court of Appeal did not, in the circumstances of this case have jurisdiction to determine the constitutionality or otherwise of life imprisonment or ascribe a term sentence thereto. In the same vein, this court cannot delve into the question of the constitutionality of the sentence of life imprisonment, as it has not been cascaded through the proper channels. 42.Having said that, we take note that the respondent pleaded that he had since reformed and also expressed his remorse at the Court of Appeal. While this is indeed commendable, an appeal before this court is not the forum to raise such matters.” 21.Determining the issue of whether the Court of Appeal had usurped the powers of Parliament by setting a term sentence as a substitute for life imprisonment. the Supreme Court held as follows: 45.In the Republic v Mwangi Case, this court held that, whilst sentencing is an exercise of judicial discretion, Parliament sets the parameters for sentencing for each crime in statute. We stated as follows:“66.We must also reaffirm that, although sentencing is an exercise of judicial discretion, it is Parliament and not the Judiciary that sets the parameters of sentencing for each crime in statute. As such, striking down a sentence provided for in Statute, must be based not only on evidence and sound legal principles but on an in-depth consideration of public interest and the principles of public law that informed the making of that specific law. A judicial decision of that nature cannot be based on private opinions, sentiments, sympathy or benevolence. It ought not to be arbitrary, whimsical or capricious. However, where a sentence is set in Statute, the Legislature has already determined the course, unless it is declared unconstitutional, based on sound principles and clear guidelines, upon which the Legislature should then act. Suffice to say, where Parliament enacts legislation, the Judicial arm should adjudicate disputes based on the provisions of the law. However, in the special circumstances of a declaration of unconstitutionality, the process is reversed”. 46.In Muruatetu I, faced with a similar question of ascribing a term sentence to life imprisonment, this court considered article 51 of the Constitution which provides for the rights of detained persons. Sub article 3 thereof specifically tasks Parliament with enacting legislation for the humane treatment of detainees, persons in remand and convicts. We, therefore, held that while life imprisonment ought not necessarily mean a prisoner’s natural life, it is for the Legislature to prescribe what constitutes life imprisonment and the parameters applicable, if at all. In that connection, we did, as the Supreme Court, recommend that the Attorney General and Parliament ought to commence an enquiry on this issue, and develop legislation on what constitutes a life sentence. Despite making this recommendation on December 14, 2017, and making an order that the Judgment be placed before the Speakers of the National Assembly and the Senate to, among other things, set the parameters of what constitutes life imprisonment, we note this recommendation has not been given consideration by the two offices of Parliament. 47.In view of the foregoing, we find that the Court of Appeal ought not to have proceeded to set a term sentence of thirty (30) years as a substitution for life imprisonment, as the effect would be to create a provision with the force of law while no such jurisdiction is granted to it. The term of thirty years was arrived at arbitrarily without involvement of Parliament and the people. In consequence, we find that the Court of Appeal ventured outside its mandate and powers.” 22.On whether in applying the Muruatetu Case (Muruatetu II), the Court of Appeal violated the doctrine of stare decisis, the Supreme Court held as follows:“ 48.Article 163(7) of the Constitution provides as follows:All courts, other than the Supreme Court, are bound by the decisions of the Supreme Court. 49.This court has underscored the importance, fidelity and centrality of respecting and observing the doctrine of stare decisis. It serves as a reference point, and ensures that there is consistency, certainty and predictability in the administration of the law which in turn, enhances confidence in the justice system. Stare decisis sets the baseline of how people conduct their everyday affairs and how they transact with the State. See Asanyo & 3 Others v Attorney- General, (Petition 7 of 2019) [2020] KESC 62 (KLR). 50.In Samuel Kamau Macharia & Another v Kenya Commercial Bank & 2 Others case (supra) we held as follows:“[60] … the decisions of Kenya’s Supreme Court, which ought always to be arrived at only after the most conscientious and detailed consideration, will stand as the binding reference-point in the norms governing the judicial process. Such a position is vital for the maintenance of the certainty, predictability, and jurisprudential standards that sustain the principles of the Constitution, and the rights and duties flowing from the legal set-up, and which provide sanctity for the legitimate actions of the people.” 51.In the instant case, the Court of Appeal in its judgment, referred to the case of Manyeso v Republic case, where a different bench of the Court of Appeal cited the Muruatetu I case in stating that the rationale therein applied mutatis mutandis to the issue of mandatory indeterminate life sentence. 52.In the Muruatetu II case we reiterated that the rationale in the Muruatetu I case was only applicable to the mandatory death penalty for the offence of murder under section 203 as read with 204 of the Penal Code. Further, we disabused the notion that the rationale could be applied as is to other offences with a mandatory or minimum sentence. 53.In the Republic v Mwangi case, we explained as follows:“(52)We therefore find that in this matter the Court of Appeal did offend the principle of stare decisis. Notably, we observe that the Court of Appeal determined that the ratio decidendi in the Muruatetu case on the unconstitutionality of mandatory sentences could be applied mutatis mutandis to the mandatory nature of minimum sentences provided for in the Sexual Offences Act. In doing so, and with respect, the Court of Appeal failed to abide by the clear principles provided in both the Muruatetu case and the Muruatetu directions in this instance.” 54.It is therefore abundantly clear that it was not open to the Court of Appeal to apply the ratio decidendi in Muruatetu I in the instant matter. Therefore, to the extent that the Court of Appeal did so, it has offended the principle of stare decisis.” 23.The Supreme Court in allowing the Appeal filed by the Office of Director of Public Prosecutions, held as follows in the appeal wherein the ODPP has supported the substitution of life imprisonment for thirty years imprisonment:“What remedies should issue? 55.As we framed the remedies for determination, we also thought it wise to address the appellant’s conduct in this matter. It is a fact that counsel appearing for the Director of Public Prosecutions and on behalf of the appellant before the Court of Appeal, supported and even proposed the substitution of life imprisonment with a term sentence, only to file this appeal with a different stand. The Office of the Director of Public Prosecutions is established under article 157 of the Constitution of Kenya and operationalized by the Office of the Director of Public Prosecutions Act (“ODPP Act”), Cap 6B of the Laws of Kenya. Section 3 of the ODPP Act sets out the guiding principles that guide this office in discharging its mandate. Some of these principles are the rules of natural justice, the promotion of public confidence in the integrity of the office, the need to serve the cause of justice, prevent abuse of the legal process and public interest, secure the observance of democratic values and principles, promotion of constitutionalism among others. We therefore do agree with the Respondent that it was in bad faith for the appellant to support a cause, the legality thereof notwithstanding, and then turn around and lodge an appeal against the same. It is important that the ODPP is consistent since this also plays a crucial role in the defence an accused person will mount. Inconsistency erodes public confidence and credibility of the justice system. 56.In conclusion, having found and held as we have hereinabove, the remedy that commends itself to us, is the setting aside of the Court of Appeal’s Judgment to the extent that it determined the parameters of life imprisonment and to the extent that it converted the respondent’s life imprisonment sentence to thirty (30) years running from July 18, 2011. For the avoidance of doubt, the High Court’s Judgment delivered on May 24, 2017 is hereby reinstated.” 24.It is important to note that the Supreme Court in the Ayako case was clear that the Court of Appeal, by delimiting life imprisonment to a term sentence of thirty (30) years, had taken over the mandate of the Legislature in line with article 94 of the Constitution. 25.In addition, and as submitted by the State, Article 51(3) of the Constitution in particular, vests the Legislature with the duty of determining the treatment of prisoners including terms for parole, conditions for release and supervision upon release. The State cited the case of the Supreme Court of the United States of America in Gore v United States, 357 US 386, 78 S Ct 1280, 2 L. Ed. 2d 1405 (1958) where it was held that the sphere of penology is purely a legislative function and not one for the courts. 26.On applicability of Muruatetu & another v Republic; Katiba Institute & 5 others (Amicus Curiae) (Petition 15 & 16 of 2015 (Consolidated)) [2017] KESC 2 (KLR) (14 December 2017) (Judgment) case, the Supreme Court did clarify in Muruatetu II that the decision only applied to Murder cases under Sections 203 and 204 of the Penal Code, until and unless the constitutional validity of the mandatory death sentence for other offences is separately challenged and determined. The Supreme Court expressly mentioned the inapplicability of Muruatetu case to robbery with violence, attempted robbery with violence, Treason and any other offences carrying mandatory sentence such as the Sexual Offences under the Sexual Offences Act. 27.Further, the Supreme Court did not outlaw the death sentence. The unconstitutionality was explained to be the mandatory nature of death sentence and its deprivation of the accused person’s right to mitigate and the denial of the trial court the discretion to impose appropriate sentence having regard to the mitigations and circumstances of each case. 28.I reiterate that in the instant petition, the trial court did not impose mandatory death sentence. It imposed 10 years prison term which was set aside and quashed on appeal to the High Court and the decision of the High Court was upheld by the Court of Appeal. The petitioner’s reliance on the Ayako case is also misplaced as the decision was overturned by the Supreme Court and Article 163(7) of the Constitution provides that:(7)All courts, other than the Supreme Court, are bound by the decisions of the Supreme Court. 29.It was therefore incumbent upon the petitioner to argue on what he considered to be the unconstitutionality of the death sentence, at the court of appeal stage. There is no evidence that the petitioner challenged the death sentence on the basis that it was unconstitutional or that it violated his constitutional rights. That said, the petitioner having appealed against death sentence as enhanced by the High Court and the Court of Appeal having upheld that sentence which was later commuted by the President to life imprisonment, this court has no jurisdiction to reopen the sentence on the basis of the Muruatetu decision. 30.Furthermore, the petitioner’s petition for resentencing before the Criminal Court was dismissed and he did not even annex to this petition, the pleadings or decision by Kimondo J. the petitioner had the opportunity to challenge the dismissal of his resentencing application, noting that the High Court Criminal Division is the one that enhanced his sentence to death penalty. 31.On the whole, I find that death sentence in itself is not unconstitutional and that the petitioner herein relying on the Muruatetu decision is a misplaced argument since the Muruatetu decision only applies to murder convictions under sections 203 as read with Section 204 of the Penal Code. 32.The petitioner has not demonstrated that the enhanced sentence as upheld by the Court of Appeal violated his constitutional rights. He has not even annexed proceedings of the trial court and the High Court, for this court to appreciate whether he was warned that on appeal, he could risk the sentence of 10 years imprisonment being enhanced to death penalty and whether he elected to continue pursuing an appeal despite the warning. 33.For all the above reasons and based on the Ayako decision of the Supreme Court, I find and hold that the petition dated 2nd October, 2024 is devoid of merit and the same is dismissed. 34.I make no orders as to costs. 35.This file is closed. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 30TH DAY OF JUNE 2026R.E ABURILIJUDGE