Lala v Director of Public Prosecution (Constitutional Petition E102 of 2025) [2026] KEHC 6766 (KLR) (Constitutional and Human Rights) (14 May 2026) (Judgment)

Lala v Director of Public Prosecution (Constitutional Petition E102 of 2025) [2026] KEHC 6766 (KLR) (Constitutional and Human Rights) (14 May 2026) (Judgment) Neutral citation: [2026] KEHC 6766 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Constitutional and Human Rights Constitutional Petition E102 of 2025 LN Mugambi, J May 14, 2026 Between Nicodemus Owour Lala Petitioner and Director of Public Prosecution Respondent Judgment 1.The Petition dated 21/2/2025 is supported by the affidavit of the Petitioner, Nicodemus Owour Lala of even date. The Petitioner further filed a rejoinder dated 28/5/2025. 2.The Petitioner states that he was convicted and sentenced to death for the offence of Robbery with violence by the Chief Magistrate, Milimani Law Courts in Criminal Case Number 917 of 1995 on 18th July, 1995. 3.He lodged an appeal before the High Court vide High Court Criminal Appeal Number 944 of 1995 which was dismissed. 4.He filed a second appeal in the Court of Appeal at Nairobi through Criminal Appeal Number 90 of 2000 which was equally dismissed for lack of merit. 5.Subsequently the death sentence was commuted to life imprisonment by His Excellency the President. At the time of filing this Petition he had served 30 years in in prison. The Petitioner seeks to have the life sentence commuted to the period already served in the interest of justice. In addition, the following orders:a.The Court be pleased to issue a declaration that death penalty that was commuted to indeterminate life imprisonment is unconstitutional in so far as it violates Article 28, 29 (d) of the Constitution by failing to give regard to not only his dignity not only as a human being and subjects the Petitioner inhuman and degrading treatment.b.The Court be pleased to declare Petitioner’s right to have been violatedc.An order remitting the Petition to the High Court for mitigation and determination of appropriate sentence in line with Article 50 (2) of the Constitutiond.An order in the alternative for revision of the Petitioner’s case in the interest of justicee.The Court be pleased to make further such order as it shall deem fit. 6.The petitioner averred that the mandatory death sentence for robbery with violence contravenes the fundamental rights enshrined in the Constitution. He argues that Section 24 and 25 of the Penal Code which authorizes imposition of the death sentence is in conflict with Articles 25, 26, 27, 28, and 29 of the Constitution. He further stated that the mandatory death sentence violates the right to freedom from cruel, inhuman, or degrading punishment outlined under Article 25(a) of the Constitution since the sentencing subjects individuals to irreversible punishment, contrary to evolving jurisprudence and international human rights standards. 7.He stated that Article 26(1) explicitly guarantees every individual a right to life, and Article 26(3) provides that life may only be deprived in accordance with the law and the deprivation must not be arbitrary. He stated that imposition of a mandatory death sentence removes judicial discretion, forcing the court to impose capital punishment irrespective of the circumstances hence the automatic imposition violates the principle of proportionality. He contended that mandatory death sentence treats all convicted individuals identically, irrespective of the circumstances of their crime thus denying the accused the opportunity for individualized sentencing and violating the principles of fairness and equality. 8.Further, Article 28 affirms the inherent dignity of every individual. He averred that the imposition of an automatic death sentence disregards the offender's dignity by denying the possibility of rehabilitation or reconsideration based on personal circumstances. This inflexible approach undermines the constitutional guarantee that dignity must be respected and protected. 9.Additionally, Article 29(a), (d), and (f) expressly forbids torture, cruelty, and inhuman or degrading treatment. He contended that the mandatory nature of the death sentence subjects individuals to psychological distress and prolonged suffering on death row, constituting cruel and degrading punishment. 10.The Petitioner averred that the present Petition does not seek a review of a decided case, instead, it challenges the constitutionality of statutory provisions viewed against the the Bill of Rights pursuant to Article 165(3)(b) and (d) of the Constitution which grants the High Court the authority to hear and determine issues related to the enforcement of fundamental rights and the validity of laws in relation to the Constitution. He contended that Article 165 (6) of the Constitution does not limit the High Court's primary jurisdiction under Article 165(3) to hear constitutional challenges. Respondent's Case 11.In response to the Petition, the Respondent filed a Replying affidavit sworn by Njoki Kihara, Principal Prosecution Counsel on 21st May, 2025. 12.The deponent restated the facts as narrated in the Petition and in the affidavit of the Petitioner, in particular, that the Petitioner was charged for the offence of Robbery with Violence Contrary to Section 296 (2) of the Penal Code vide Criminal case no. 917 of 1995 at Milimani where he was sentenced to suffer death on the 18th July 1995. 5. He filed High Court Criminal Appeal case No. 944 of 1995 and the Court delivered its judgment on appeal thereby becoming functus officio. 6. Thereafter the Petitioner filed an Appeal at the Court of Appeal case no. 90 of 2000 and the same was dismissed on 20th December 2000 per the copy of the judgment annexure NK-I 13.Accordingly, the deponent contends that under 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. 14.The Respondent further assets that under section 24 and 25 of the Penal Code, punishment by death is lawful and the petitioner has not demonstrated how the respondent has violated the Constitution of Kenya and his rights since he was charged, tried and convicted of the offence of Robbery with Violence, and was awarded a convenient sentence in accordance with the provisions of the law. 15.The Respondent stated this Court cannot entertain any further prayer for mitigation and determination of appropriate sentence or any revision as the same as that was dealt with by a court of concurrent jurisdiction- the High Court in Nairobi Criminal case No. 944 of 1995, which dismissed the Petitioner's Appeal hence the instant Petition is thus a clear abuse of the court process and should be dismissed. Submissions Petitioner Submissions 16.The Petitioner submitted that the Petition challenges the imposition of a life sentence as a discretionary alternative to the previously mandatory death sentence, and invites the Court to interrogate whether this arrangement sentence aligns with the current constitutional dispensation. The submitted that while the Penal Code which was enacted in 1963 was aimed at curbing societal ills through deterrent penalties like capital punishment was effective in its time, it has posed a constraint on judicial discretion, preventing courts from tailoring sentences to individual circumstances. The Petitioner thus submits the era of mandatory death sentences should be reviewed and Judicial discretion encouraged to ensure conformity with the Constitution of Kenya, 2010. 17.The Penal Code must be interpreted with necessary alterations and adaptations to reflect constitutional values. 18.On the question of whether this Court has the jurisdiction to hear and determine the present petition, the Petitioner cited the case of Owners of Motor Vessel “Lillian S” v Caltex Oil Kenya Ltd [1989] KLR 1, it must be established before a court exercises any authority. He stated that under Article 165(3)(b) of the Constitution, the High Court has jurisdiction to determine whether a fundamental right or freedom in the Bill of Rights has been denied, violated, infringed or threatened. Further that Article 165(3)(d) empowers the High Court to interpret constitutional questions, including: the consistency of any law with the Constitution. Further, Article 165 (3) (d) (i) & (ii) of the Constitution vests power to the High Court to hear any question respecting the interpretation of the Constitution including the determination of the question whether or not any law is inconsistent with or in contravention of the constitution and also the question whether anything said to be done under the authority of the constitution or of any law is in consistent with, or in contravention of, the constitution. An unconstitutional statute is not law; and more important judicial function includes the power to determine and apply the law, and this necessarily includes the power to determine the legality of statutes. The judiciary has a special role in our system with respect to constitutional interpretation. 19.The Petitioner thus argued that this court has Jurisdiction to determine whether the petition before it raises issues that have threatened, denied, violated or infringed on fundamental rights and freedoms that accrued to the Petitioner. 20.The Petitioner submitted that on 6th day of July, 2021 the Supreme Court in Petition No. 15 & 16 (consolidated) Of 2015 gave fresh directions on the application of its decision hitherto was seen to have not annulled the mandatory nature of death sentence in capital offences of murder and robbery with violence cases, but qualified the same by stating that its decision did not extend to other provisions of the law that prescribe mandatory or minimum sentences.“[14]. It should be apparent from the foregoing that Muruatetu cannot be the authority for stating that all provisions of the law prescribing mandatory or minimum sentences are inconsistent with the Constitution. It bears restating that it was a decision involving the two Petitioners who approached the Court for specific reliefs. The ultimate determination was confined to the issues presented by the Petitioners, and as framed by the Court" 21.The thus submitted that this Petition presents an opportunity for the all the parties to determine whether the constitutionality of the life sentence. 22.On the discretion by the trial court to impose life sentence under the section 296 (2) of the penal code as a less severe sentence in the spirit of article 25 (c) & 50 (2) (p), the Petitioner cited Pravin Bowry, Senior advocate and legal practitioner in his article, ('Pravin Bowry: What Penalty for Sex Offenders? ', Standard Digital, 14 September 2011) that mandatory minimum sentences are unjust and unfair and this is because in such instances, the discretion of the judges and magistrates has been taken away. He relied on other scholarly articles to buttress this point including Author Mathew C. Lamb in his seminal article, A Return To Rehabilitation: Mandatory Minimum Sentencing in an Era of Mass Incarceration” who argues that overreliance by United States of America in imposing mandatory sentences to curb drug crimes and controlled substance offenses led to skyrocketing of the prison population observing that the total prison population increased by approximately 116% and the population of incarcerated drug offenders increased by approximately 532%. Such extreme incarceration based on mandatory minimum sentences for drug offences has neither deterred crime nor drug use. Consequently, after extensive use of mandatory minimum sentencing, the United States accounts for a quarter of the world's prison population, but only five percent of the world's total population and this has inflicted steep fiscal and social costs on the American population. 23.As to whether life sentence meets the provisions of article 25 (c) & 50 (2)(p) of the Constitution; the Petitioner argued that life sentences imposed are harsh, arbitrary, and disregard the spirit of discretion and have no definition in law. Respondent’s Submissions 24.The Respondent filed submissions dated 4th July, 2025 and argued that the petitioner has not demonstrated how the respondent has violated the Constitution considering that he was charged, tried and convicted of the offence of Robbery with Violence Contrary to Section 296 (2) of the Penal Code vide Criminal case no. 917 of 1995 at Milimani where he was sentenced to death on the 18th July, 1995 and pursuant to section 24 and 25 of the Penal Code, punishment by death is lawful. 25.In appealing on sentence at the High Court which was dismissed, the petitioner ought to have demonstrated how his rights were violated but he failed to do so before the High Court. The Respondent thus argued that this Court cannot entertain any further prayer or mitigation on determination of appropriate sentence or any revision as the same was also dealt with by a court of concurrent jurisdiction in High Court Criminal case no. 917 of 1995. 26.The Respondent relied on the decision of the Supreme Court Petition no. E018 of 2023 Re vs Joshua Gichuki Mwangi whereby it was held that: ‘……before Kenyan Courts can determine whether or not the above trends and decisions are persuasive, we reiterate that there ought to be a proper case filed, presented and fully argued before the High Court and escalated through the appropriate channels on the constitutional validity or otherwise of minimum sentences other than for the offence of murder. This was the approach and direction in Muruatetu which must remain binding to all courts below.’ 27.This the Respondent argued cannot be done by revival of cases that have already been conclusively dealt in the Superior Courts. 28.Further, the Respondent argued that the Petition has not been set out with precision the manner indicating the manner the Respondent has infringed his fundamental rights and freedoms to warrant the intervention of this Honourable Court as held in the case of Anarita Karimi Njeru v Republic (No.1)-[1979] KLR 154 where the Court stated;“…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.” The principle was also reiterated by the Court of Appeal in Mumo Matemo v Trusted Society of Human Rights alliance [2014] eKLR, where it stated that:“…the principle in Anarita Karimi Njeru (supra) underscores the importance of defining the dispute to be decided by the court… Procedure is also a handmaiden of just determination of cases. Cases cannot be dealt with justly unless the parties and the court know the issues in controversy. Pleadings assist in that regard and are a tenet of substantive justice, as they give fair notice to the other party. The principle in Anarita Karimi Njeru (supra) that established the rule that requires reasonable precision in framing of issues in constitutional petitions is an extension of this principle” 29.The Respondent submitted that the Petitioner’s fundamental rights are not absolute and must be balanced with the rights of others and public interest. Analysis and Determination 30.Having reviewed the pleadings and submissions of the Parties herein, the Court considers the following to be the issues for determination:I.Whether in the light of the circumstances of this case, this Court has the jurisdiction to entertain this PetitionII.Whether a declaration should issue to the effect that commuting the death penalty imposed on the Petitioner to indeterminate life imprisonment is unconstitutional for violating Article 28, 29 (d) of the Constitution by failing to give regard to not only his dignity not only as a human being and subjects the Petitioner inhuman and degrading treatment.III.Whether this Petition should be remitted to the High Court with an order that the accused mitigation be taken for determination of appropriate sentence in line with Article 50 (2) of the Constitution Whether in the light of the circumstances of this case, this Court has the jurisdiction to entertain this Petition 31.Jurisdiction refers to the legal authority or power of the Court to adjudicate over a dispute. In Macharia & another v Kenya Commercial Bank limited & 2 others [2012] KESC 8 (KLR) this principle was underscored by the Supreme Court by stating thus:“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…. Where the Constitution exhaustively provides for the jurisdiction of a Court of law, the Court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation. Nor can Parliament confer jurisdiction upon a Court of law beyond the scope defined by the Constitution. Where the Constitution confers power upon Parliament to set the jurisdiction of a Court of law or tribunal, the legislature would be within its authority to prescribe the jurisdiction of such a court or tribunal by statute law.” 32.The Petitioner gave a chronology of the journey that he has traversed in connection with the robbery with the violence case since he was convicted by the lower Court and sentenced to death. He subsequently lodged appeals both at the High Court and Court of Appeal and lost. His sentence was later commuted to life imprisonment by His Excellency the President. He had served 30 years of this the sentence at the time of filing the petition. He now wants this Court to commute the sentence to period already served including urging this Court to make other orders including declare that Petitioner’s right to have been violated, an order remitting the Petition to the High Court for mitigation and determination of appropriate sentence in line with Article 50 (2) of the Constitution, An order in the alternative, for revision of the Petitioner’s case in the interest of justice. 33.The Respondent’s position is that this matter was conclusively heard and determined by the High Court previously and on being dissatisfied the petitioner proceeded to the Court of Appeal, hence this Court is now functus officio. 34.The Petitioner countered that the Constitution empowers this Court under Article 165 (3) (b) and (d) to determine issues of violation of rights hence is a proper forum and the Court should thus assume jurisdiction and determine the constitutionality of the issues raised in the Petition. 35.The doctrine of functus officio was explained by the Supreme Court Odinga v Independent Electoral & Boundaries Commission & 3 others [2013] KESC 8 (KLR) where the Court observed that it underscores the end of adjudicative authority of the Court holding as follows:“(18)We, therefore, have to consider the concept of “functus officio,” as understood in law. Daniel Malan Pretorius, in “The Origins of the functus officio Doctrine, with Specific Reference to its Application in Administrative Law,” (2005) 122 SALJ 832, has thus explicated this concept:“The functus officio doctrine is one of the mechanisms by means of which the law gives expression to the principle of finality. According to this doctrine, a person who is vested with adjudicative or decision-making powers may, as a general rule, exercise those powers only once in relation to the same matter.… The [principle] is that once such a decision has been given, it is (subject to any right of appeal to a superior body or functionary) final and conclusive. Such a decision cannot be revoked or varied by the decision-maker.”(19)This principle has been aptly summarized further in Jersey Evening Post Limited v. A1 Thani [2002] JLR 542 at 550:“A court is functus when it has performed all its duties in a particular case. The doctrine does not prevent the court from correcting clerical errors nor does it prevent a judicial change of mind even when a decision has been communicated to the parties. Proceedings are only fully concluded, and the court functus, when its judgment or order has been perfected. The purpose of the doctrine is to provide finality. Once proceedings are finally concluded, the court cannot review or alter its decision; any challenge to its ruling on adjudication must be taken to a higher court if that right is available” 36.The Petitioner’s criminal case was fully heard and after this Court determined it, he went to the Court of Appeal where the matter was also adjudicated upon and judgment delivered. This Court would be overstepping its mandate if it were to assume jurisdiction over in examining the nature of the sentence imposed in the matter when the Court of Appeal heard and determined the case unless there are specific orders by the Court of Appeal remitting a particular issue to this Court for determination. The issues the Petitioner is raising about the constitutionality of the sentence should have been ventilated before the Court Appeal. This Court cannot now not countermand, vary or substitute the orders that the Court of Appeal upheld. Taking that path would undermine the hierarchy of Courts and breed chaos and confusion in the administration of justice. 37.Further, the argument by the Petitioner that this Court may reopen the case because it raises concerns on the violation of his Constitutional rights cannot succeed. The constitutional jurisdiction of the High Court is equally subject to Article 165 (6) of the Constitution which provides as follows:“The High Court has supervisory jurisdiction over subordinate courts and over any person, body or authority exercising judicial or quasi-judicial function, but not over a superior court.” 38.Before I conclude, it necessary to comment on the petitioner’s rejoinder. It is only upon the receipt of the Replying affidavit by the Respondent that the Petitioner, in the rejoinder averred that he not seeking a review of a decided case. He departed from his original pleading and mounted a challenge targeting the constitutionality of Section 24 and 25 of the Penal Code and in particular specifically the mandatory sentences and indeterminate life imprisonment. The belated introduction of the fresh issues through the rejoinder amounts to what I would describe as trial by ambush since the Respondent had no opportunity to respond to those new issues. It changed the character and fundamentally altered the scope of the original Petition that the Respondent had responded to, and in my view, this is unacceptable. I thus declined to consider these belated embellishments. 39.The upshot is that the Petition is hereby dismissed. I shall not make any orders as to costs. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 14TH DAY OF MAY, 2026.………………………………………………L N MUGAMBIJUDGE