https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7808

Magawa v Republic (Petition E032 of 2025) [2026] KEHC 7808 (KLR) (22 May 2026) (Judgment) Neutral citation: [2026] KEHC 7808 (KLR) Republic of Kenya In the High Court at Kiambu Petition E032 of 2025 MN Mwangi, J May 22, 2026 Between Richard Sam Magawa Petitioner and Republic Respondent Judgment 1.Before this Court is a petition dated 1st October 2025, seeking a declaration that the death sentence imposed by the Court of Appeal and later commuted to life sentence is inconsistent with Articles 50(2)(h) and (p) and 25 (a & c) of the Constitution. The petitioner also seeks a declaration that his constitutional rights have been violated. He prays to have his case remitted to the Trial Court for mitigation and determination of an appropriate sentence, or a review of his case in the interest of justice. 2.The petitioner stated that he was convicted and sentenced to death for the offence of Robbery with violence contrary to Section 296(2) of the Penal Code in Kikuyu Criminal Case No. 41 of 2006 on 26th May 2010. That thereafter, he lodged an Appeal in Nairobi HCCRA No. 311 of 2010, which was dismissed on 13th November 2013. He stated that being aggrieved with the decision, he filed an Appeal to the Court of Appeal, being CACRA No. 118 of 2018, which was dismissed on 4th February 2022. The petitioner indicated that he filed a petition for resentencing based on Muruatetu 1, but it was not heard due to the change of circumstances in Muruatetu 2, as the decision in Muruatetu 1 only applies to the offence of murder. He stated that he has served 16 years in prison and urged this Court to consider that time as being sufficient sentence. 3.In the petition, the petitioner relied on the Preamble of the Constitution, and Articles 2, 2 (5) & (6), 3(1), 19(1), 19(3), 20(1 to 4), 22(1), 24(1 & 2), 27, 28, 50(1), 51(1) & (3), 165(3) and 258 of the Constitution to support his petition. 4.The petitioner filed written submissions dated 10th February 2026, which he fully relied on. He cited Mombasa Constitutional Petition No 5 of 2022 - Gerald Muiruri Wathika & others (consolidated with Petition No. 6 of 2022). He stated that this Court has the jurisdiction to entertain the petition herein, for consideration of mitigation under Section 329 of Criminal Procedure Code, for purposes of resentencing. 5.He submitted that Courts should treat petitioners equally, by giving them fair trial, to avoid instances where some petitioners are given the death penalty, while some serve life imprisonment, as it is unconstitutional. 6.He also cited a German case of Federal Constitutional Court in [1977] 45 BVerfGE 187 on the right to human dignity. He contended that death sentence contravenes the International Covenant on Civil and Political Rights (ICCPR) adopted by the United Nations General Assembly (UNGA) Resolution 220 A (XXI) of 16th December 1966, which entered into force on 23rd March 1976, (999 UNTS 171 ICCPR). 7.He submitted that under the ICCPR, Article 6 recommends the abolition of mandatory death sentence. He stated argued that sentencing a man of 31 years of age to death, and later to life imprisonment, will lead to unequal treatment under the Constitution. He argued that although sentences should have deterrent and retributive force, excessive punishment does not serve the interests of justice, or of the society. 8.He stated that death sentence was translated to mean 30 years imprisonment, as was held in the case of Fred Michael Bwayo - Criminal Appeal No. 130 of 2007 cited in the case of John Maina Kariuki at Nairobi CAP 53 & 105 of 2004, available in Court of Appeal decisions in Criminal Appeal 2012 “B” Volume 55. 9.The petitioner urged this Court to interrogate the death sentence and declare it unconstitutional. He also sought to have the case remitted to the Trial Court for purposes of mitigation and resentencing, in accordance with Section 329 of the Criminal Procedure Code. 10.The respondent did not file any response or written submissions. Mr. Gacharia, Principal Prosecution Counsel orally submitted that the petitioner is serving a lawful sentence. He also stated that the Court of Appeal dismissed the petitioner’s Appeal therein and urged this Court to dismiss the petition. Analysis And Determination. 11.I have considered the petition, the supporting affidavit, as well as the written submissions of the petitioner. I have also taken into account, the oral submissions made by the Prosecution Counsel in the matter. The issue for determination is whether the petition herein is merited. 12.The petitioner has so far exhausted his avenues for appeal, given that he filed an Appeal to the High Court and subsequently filed another one to the Court of Appeal. In my considered view, he cannot now seek recourse in this Court. See the case of John Kagunda Kariuki v Republic [2019] eKLR, where the Court held as follows-“ 8.However, unlike the decision in Muruatetu and other cases where the death penalty was imposed, the decision Dismas Wafula Kilwake does not operate retroactively. This was a decision given the ordinary common law mode which does not entitle all other people who could have benefitted from the new development in decisional law to approach the High Court afresh for review of the sentences imposed. Instead, the principles announced in the case will apply to future cases. In other words, persons whose appeals have already been heard by the High Court are not entitled to file fresh applications for re-sentencing in accordance with the new decisional law. To reach a different conclusion would lead to an ungovernable situation where all previously sentenced prisoners would seek review of their sentences...” 13.Guided by the above decision, this Court finds that the present petition seeking orders for review of sentence, is an abuse of the Court process since the petitioner’s Appeals were determined by the High Court and the Court of Appeal, hence this Court cannot therefore reopen the matter, or usurp jurisdiction and remitting the petitioner’s case for resentencing and setting aside of the death sentence upheld by the High Court and the Court of Appeal, as it will be akin to changing the law. 14.This Court finds that it lacks the requisite jurisdiction to interfere with the decisions of the Appeals filed in the High Court and Court of Appeal, by changing the sentence of life imprisonment the petitioner is serving. If the petitioner was aggrieved by the decision of the Court of Appeal, the proper remedy would have been to lodge an Appeal to the Supreme Court. This Court finds no acts of constitutional rights violations or infringement, as the sentence the petitioner is serving is lawful. 15.In the case of Mwaura v Prosecutions [2026] KEHC 4767 (KLR), the Court held as follows-“If the petitioner was unhappy with the Court of Appeal's decision, the only recourse was to appeal to the Supreme Court. The appeals process functions like a "non-return valve," intended to allow movement in only one direction and promote finality. Similar to how fluids move in a single direction and prevent backflow, the appeal system ensures that once a higher court has made a final decision, the case cannot be reopened or re-litigated in a lower court. Although the petitioner framed his claims as constitutional issues, his submissions clearly show he was unhappy with the Court of Appeal's decision.” 16.The upshot is that the petition herein lacks merits. It is hereby dismissed. DATED, SIGNED AND DELIVERED AT KIAMBU ON THIS 22ND DAY OF MAY 2026. JUDGMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.NJOKI MWANGIJUDGEIn the presence of:-The petitionerMr. Gacharia Principal Prosecution Counsel – for the DPPMs Julia – Court Assistant.