https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9875

Mativo v Republic (Petition E004 of 2025) [2026] KEHC 9875 (KLR) (3 July 2026) (Judgment) Neutral citation: [2026] KEHC 9875 (KLR) Republic of Kenya In the High Court at Voi Petition E004 of 2025 A Mshila, J July 3, 2026 Between Joseph Musyoka Mativo Petitioner and Republic Respondent Judgment 1.This is an application for sentence review through a Constitutional Petition in which the Petitioner seeks this Court to grant him another chance in life. The Petitioner was tried and convicted on 14th September, 2021 before the Voi Principal Magistrates Court, Criminal Case No.890 of 2013. 2.The Petitioner was charged with the offence of Robbery with Violence contrary to Section 296(2) of the Penal Code. He was convicted and sentenced to suffer a life sentence on 14/09/2021. Dissatisfied with both the conviction and the sentence the Petitioner proffered appeals vide High Court Criminal Appeal No. E038 & E039 of 2021- Consolidated 2015 and Court of Appeal Criminal Case No. E037 & E038 of 2023 the appeals were all disallowed and both appellate Courts upheld the trial court’s sentence of life imprisonment. 3.The Petitioner has now filed this instant Petition stating that life sentence was unconstitutional as it does not respect or protect the inherent dignity of a person contrary to Article 28 of the Constitution. A life sentence inflicts psychological torture contrary to Article 29(d) of the Constitution. 4.The Petitioner and Respondent were directed to canvas the Petition by way of filing and exchanging written submissions. Petitioner’s Submissions 5.The Petitioner submits that this court should evaluate and analyze the matter a fresh and order for the appropriate remedy for the Petitioner. It was also submitted that sentencing is a discretion of the court as such the sentence of life imprisonment requires reconsideration as it is excessive, inappropriate and fails to adequately consider the mitigation factors and circumstances of the case. The Petitioner submits that there is development in jurisprudence concerning the treatment of prisoners requiring prisoners to undergo rehabilitation rather than condemnation. Reliance was placed in the case of Julius Kitsao Manyesio vs Republic. Respondent’s Submissions 6.The Respondent only filed Grounds of Opposition but did not file any written submissions. Issues For Determination 7.Upon reading the Petition and the written submissions the sole issue framed for determination is whether this Court should review the Petitioner’s sentence of life imprisonment. Analysis 8.The applicable law is found under Article 165(3) of the Constitution which gives this Court the jurisdiction to determine cases where the rights and fundamental freedoms of citizens under the Bill of Rights have been violated. This jurisdiction in respect of resentencing is demonstrated in prevailing jurisprudence that the High Court may fix a definite period of imprisonment where a person has been imprisoned for life or the law prescribes a life sentence. The Petitioner before approaching this Court must also have exhausted all the appellate processes; The Petitioner submitted that his appeals in the High Court Nairobi (High Court Criminal Appeal No. E038 & E039 of 2021- Consolidated and the Court of Appeal sitting in Mombasa in Criminal Case No.E037 & E038 of 2023 both appeals were found to have no merit and were both dismissed; the Petition is therefore rightly before this Court. 9.The appropriate sentence depends on the facts and the circumstances of the case. The Judiciary Sentencing Policy Guidelines lists the relevant factors in sentencing at page 15 paragraph 4.1 including the gravity of the offence, the threat of violence against the victim, the nature and type of weapon used by the Applicant to inflict harm. 10.In the instant case the facts are as follows; the complainant BENSON KAGO MWAI (PW1) told the court that on 9/10/2018 he left Likoni in a vehicle that was loaded with electrical appliances to be delivered in Nairobi. At about 9.30pm he suspected that he had a tire burst so he stopped in Voi to inspect the motor vehicle when he was attacked by a gang of four (4) people. They hit him on the head and then one of them took control of the vehicle and drove it up-to Ndii where they pulled him out of the vehicle and tied him up near the fence to the National Park and left him at the mercy of wild animals. One of the men was armed with a knife which was brandished menacingly as they demanded for the PIN to his cell phone. Upon tying him up they stuffed a shirt into his mouth and abandoned him as they drove away with the trailer; The Complainant managed to crawl to the main highway and was rescued by a motorist and with the assistance of police officers he was taken to hospital. 11.The complainant attended two (2) identification parades at Makindu Police Station where the Petitioner was identified as the assailant and as one of the robbers. The Petitioner was charged convicted and sentenced to life imprisonment; the two appellate courts were satisfied that the Petitioner had properly identified and that the prosecution had proved the key ingredients of the offence to the required standard of proof and this sealed his fate; 12.The circumstances of this case have been considered. The Petitioner submitted that he was remorseful and that he had been rehabilitated during this period of incarceration. He also relied on and made reference to the emerging jurisprudence. The record indicates that he was sentenced to life because that is the mandatory minimum sentence provided by the law. Life imprisonment should not mean the natural life of a convict. Such an indefinite sentence contravenes the right to human dignity and the right not to be subjected to inhuman and degrading treatment. 13.The imposition of an indeterminate life sentence, denies a convict the opportunity to be heard in mitigation and also denies them the benefit of parole whilst those facing lesser sentences are allowed to be heard in mitigation and are admitted to parole. This is an unjustifiable discrimination, unfair and repugnant to the principle of equality before the law under Article 27 of the Constitution. 14.For those reasons this Court is satisfied that the Petition has merit but will impose a sentence that will act as a deterrent to other potential offenders. Findings And Determination 15.In light of the above reasoning this Court makes the following findings and determinations:-i.This Court finds the Petition has merit and it is hereby allowed.ii.The Petitioner’s life sentence is found to be unconstitutional and it is hereby reviewed and substituted with a definite custodial sentence for a term of Forty (40) years. The sentence period to be calculated from the date of conviction on 14/09/2021 by the trial court.Orders Accordingly. DATED SIGNED AND DELIVERED VIA TEAMS AT VOI THIS 3RD DAY OF JULY, 2026.A. MSHILAJUDGEIn the presence of;Millicent/Trizah – Court AssistantsKanyuira - for the StatePetitioner – present in person from Manyani Maximum PrisonLanguage - Kiswahili