https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11293

Olwa v Republic (Criminal Miscellaneous Application E022 of 2026) [2026] KEHC 11293 (KLR) (24 July 2026) (Ruling) Neutral citation: [2026] KEHC 11293 (KLR) Republic of Kenya In the High Court at Kisumu Criminal Miscellaneous Application E022 of 2026 A Mabeya, J July 24, 2026 Between Maxwell Ochieng Olwa Applicant and Republic Respondent Ruling 1.MAXWELL OCHIENG OLWA (‘the applicant’) was charged with two counts of robbery with violence contrary to section 296 (2) of the Penal Code. He was tried, convicted and sentenced to suffer death. 2.His appeals to both the High Court and the Court of Appeal were dismissed. Later his death sentence was commuted to life imprisonment by the President of the Republic of Kenya. 3.By a Notice of Motion dated 27/1/2026, he has approached this Court vide various Articles of the Constitution seeking that his said life sentence be reviewed taking into consideration of 18 years he has already served. 4.He contended that he has exhausted all available avenues of appeal. That he approaches this Court vide Articles 50 (1) (2) (p) (q) and 165 (3) (a) of the Constitution and Article 6(4) of the ICCPR. That the committed sentence of life is contrary to Articles 27 and 28 of the Constitution. It is degrading, inhuman and discriminatory. That others sentenced under section 296 (2) have determinate sentence terms. 5.I have considered the contestation by the applicant. Article 50 (2) (p) (q) and 165 (3) of the Constitution provide to the effect of the right to fair hearing. The right invoked is entitlement by an accused to the most least severe sentence on the offence charged and appeal or review to a higher court. 6.In the present case, section 296 (2) of the Penal Code provides: -“If the offender is armed with any dangerous or offensive weapon or instrument, or is in company with one or more other person or persons, or if, at or immediately before or immediately after the time of the robbery, he wounds, beats, strikes or uses any other personal violence to any person, he shall be sentenced to death.” 7.The least sentence is death. There is no other lesser sentence provided for on conviction for robbery with violence. The commutement to life cannot be said to have been discriminatory because, that is the prerogative of the President of the Republic in exercise of his power of mercy. 8.On the contention that life sentence is indeterminate, degrading and inhuman, there is nothing to show that the said sentence is unlawful or unconstitutional. It may be indeterminate but the Constitution itself has not outlawed it. Further, there is nothing to show that it is degrading or inhuman. 9.In the premises, the application is found to be without merit and is dismissed.It is so ordered. DATED AND DELIVERED AT KISUMU THIS 24TH DAY OF JULY, 2026.A. MABEYA, FCI ArbJUDGE