https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11752

Kimathi v Republic (Petition E003 of 2025) [2026] KEHC 11752 (KLR) (30 June 2026) (Ruling) Neutral citation: [2026] KEHC 11752 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Petition E003 of 2025 AM Muteti, J June 30, 2026 Between Alex Kimathi Petitioner and Republic Respondent Ruling 1.The petitioner in this matter was tried and convicted for the offence of robbery with violence contrary to Section 296 (2) of the Penal Code and sentenced to suffer death. 2.The petitioner filed an appeal before the High Court challenging both conviction and sentence and that appeal was heard and dismissed. he later appealed to the Court of appeal which upheld the decision of the High Court. The death sentence was later commuted to life imprisonment 3.The petitioner has approached this court under the provisions of Section 216 and 329 of the Criminal Procedure Code seeking to have this court review his sentence from that of life imprisonment to a definite or determinable prison term. 4.The respondent opposed this petition primarily on the ground that this court lacks jurisdiction since the Court of appeal had already the decision of the High court sentencing the petitioner to death. The respondent urged the court to decline jurisdiction and dismiss the application in entirety. 5.This court has considered the petition as well as the submissions by both parties and it is indeed true that the jurisdiction of this court to determine the petition is a matter that this court cannot avoid to determine in limine in view of the fact that the petitioner is serving a life sentence which was as a result of a presidential decree after he had exhausted the appellate process. 6.Jurisdiction is everything and the court cannot entertain a matter where its jurisdiction is wanting. The petitioner having lost his appeals before a judge of concurrent jurisdiction of this court and the Court of appeal could not re-open the matter before this court as he has attempted to do. 7.This court cannot overturn the decision of the court of appeal. If the court were to do so it would be acting without jurisdiction thus the decision would be a nullity ab initio, See Owners of Motor Vessel Lillian “S”Vs Caltex Oil (K) Ltd (Civil Appeal 50 of 1989) [1989] KECA 48 (KLR). 8.Further, the Supreme court in Samuel Kamau Macharia & anor vs Kenyac Commercial Bank Ltd & 2 Others [2012] Eklr, held that :“A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law.” 9.The High court cannot entertain a petition whose sole purpose is to circumvent earlier decisions of this court and the Court of Appeal. This petitioner vide Misc. Application No. E203 of 2024 sought a resentencing order before the honorable Justice Bahati Mwamuye who on 6th of March 2025 dismissed the application for want of jurisdiction. It therefore follows that this petitioner is engaged in a well calculated maneuver to try and mislead the courts hoping that at some point the courts would entertain his prayer and hopefully set him free. This is a classic case of abuse of the legal process. The instant petition amounts to nothing but a waste court’s time. It is this kind of litigants that the registrar automation should her guns on and ensure that the court case tracking system is able to flag such litigants and instantly have their matters sieved and placed before a judge for summary dismissal. 10.It is unfortunate that courts have to be inundated with useless applications by persons who have had their time before the courts and continue to engage the judicial system in what is clearly a useless venture. A solution to this menace should be found sooner than later. I say no more. 11.The petitioner is accordingly struck out. 12.It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 30TH DAY OF JUNE 2026.A. M. MUTETIJUDGEIn the presence of:Court Assistant: HabibaPetitioner: PresentMogere for Respondent