https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12395

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KISUMU** **MISC. CRIMINAL APPLICATION NO. E067 OF 2026** **MOI OWITI OWITI……………………………………………….APPLICANT** **VERSUS** **REPUBLIC………………………….………………………..….RESPONDENT** **RULING** 1. The Applicant herein, vide his chamber summons dated 5th May, 2026 seeks orders for the rehearing of his sentence and the determination of an appropriate sentence to substitute the sentence of life imprisonment imposed upon him. 2. The Applicant also seeks an order for the reconsideration of his further mitigation and other relevant factors in determining an appropriate and proportionate sentence in substitution of the original sentence of life imprisonment. 3. The legal basis and grounds upon which the application is premised are that the Applicant was initially charged in *Bondo Senior Resident Magistrate’s Criminal Case No. 1205 of 2009* with the offence of defilement contrary to *Section 8(2)* of the *Sexual Offences Act*, tried, convicted and sentenced to life imprisonment. His first and second appeals were subsequently dismissed, thereby exhausting his avenues of appeal, namely, *Kisumu High Court Criminal Case No. 87 of 2019* and *Kisumu Court of Appeal Criminal Appeal No. 268 of 2019*. 4. The Applicant contends that the present application is premised on *Article 6(4)* of the *International Covenant on Civil and Political Rights* and *Articles 2(6)* and *50(2)(q)* of the *Constitution.* 5. He further relies on the decision of the High Court in *Consolidated Petition No. E008 of 2024* at Vihiga and contends that he is entitled to seek a review of his sentence before this Court pursuant to *Sections 362* and *327(1)* and *(2)* of the *Criminal Procedure Code.* 6. He also asserts that, under *Article 165(3)* of the *Constitution*, this Court has jurisdiction and a constitutional obligation to redress violations and infringements of fundamental rights and freedoms guaranteed under the Bill of Rights. 7. The Applicant further contends that he has been fully rehabilitated during his period of incarceration and is ready to reintegrate into society as a self-supporting and law-abiding citizen. He states that he has participated in various rehabilitation programmes and acquired life skills which would facilitate his reintegration into society. He argues that continued incarceration without any prospect of release would ruin the remainder of his life and that the indeterminate nature of his life sentence violates his right to human dignity under *Article 28* of the *Constitution.* 8. The Applicant further contends that the mandatory nature of the sentence imposed under *Section 8(2)* of the *Sexual Offences Act* deprived the trial court of the opportunity to meaningfully consider his mitigation and other relevant sentencing factors, including those contemplated under *Sections 216, 329* and *333(2) of the Criminal Procedure Code.* 9. Relying on the decisions in ***Fredrick Kibienda v Republic, Criminal Revision No. E008 of 2021 at Vihiga*** and ***John Maina Kamau v Republic, Murang’a High Court Criminal Revision No. 422 of 2013*,** the Applicant contends that he is entitled to seek a review and reconsideration of the sentence imposed upon him. 10. The application is supported by the Applicant’s affidavit sworn on 5th May, 2026 in which he deposes that he was arrested, charged and convicted of the offence of defilement contrary to *Section 8(2)* of the *Sexual Offences Act* and sentenced to life imprisonment. 11. Being dissatisfied with the conviction and sentence, he appealed to the High Court in *Kisumu High Court Criminal Appeal No. 87 of 2010,* which appeal was dismissed, and thereafter lodged a second appeal in the Court of Appeal at Kisumu in *Criminal Appeal No. 268 of 2019,* which was also dismissed. 12. The Applicant deposes that he has consequently moved this Court seeking a review of his life sentence and its substitution with a determinate and proportionate sentence, relying on the decision of the ***Fredrick Kibienda v Republic, Criminal Revision No. E008 of 2021 at Vihiga.*** 13. He describes himself as a first offender and remorseful, and pleads for forgiveness from Almighty God, the victim and the victim’s family. He further deposes that, during the 17 years he has been incarcerated, he has lived well with his fellow inmates and prison staff. 14. The Applicant further deposes that he has engaged in various prison rehabilitation and reformation programmes, including spiritual, technical and vocational courses, and has attained various certificates and diplomas. 15. The application is opposed and to that end the Respondent filed a replying affidavit sworn by **Ms. Mercy Mutheu Muema,** Prosecution Counsel, on 18th June, 2026, in which the said deponent contends that the Applicant was charged, tried and convicted by the Resident Magistrate’s Court at Bondo in *Criminal Case No. 1205 of 2009* for defilement contrary to *Section 8(1)* as read with *Section 8(2)* of the *Sexual Offences Act,* the complainant having been found to be a child aged ten years. He was sentenced to life imprisonment. 16. His first appeal to the High Court in *Criminal Appeal No. 87 of 2010* was dismissed on 23rd September, 2011, with the High Court affirming both the conviction and sentence. His second appeal to the Court of Appeal at Kisumu in *Criminal Appeal No. 268 of 2019* was also dismissed on 13th March, 2026, with the Court of Appeal holding that the sentence imposed was lawful and neither harsh nor excessive. 17. The Respondent therefore contends that the Applicant has exhausted his appellate remedies and that the sentence has been considered and affirmed at three judicial stages. 18. The Respondent’s primary objection is that this Court lacks jurisdiction, in the exercise of its revisionary jurisdiction under *Sections 362, 364* and *327(2)* of the *Criminal Procedure Code,* to disturb, vary, set aside or substitute a sentence which has already been the subject of a final determination by the Court of Appeal. 19. It is contended that the revisionary jurisdiction of the High Court is supervisory in nature and is ordinarily exercised over proceedings of subordinate courts to determine the correctness, legality or propriety of a finding, sentence or order. It cannot, however, be invoked to reopen or relitigate a sentence that has already been considered and determined by the Court of Appeal. 20. The Respondent further relies on *Article 163(7)* of the *Constitution* and the doctrine of *stare decisis,* contending that this Court cannot, through revision, sit on appeal over or vary the decision of the Court of Appeal. To allow the application to proceed would, according to the Respondent, amount to an impermissible disguised third appeal. 21. The Respondent further contends that the Applicant’s reliance on ***Fredrick Kibienda v Republic, Criminal Revision No. E008 of 2021 at Vihiga,*** is misplaced, as the decision is distinguishable and cannot confer jurisdiction upon this Court to review a sentence which has already been the subject of a substantive determination by the Court of Appeal. 22. The Respondent argues that, having exhausted his appellate remedies, any further recourse available to the Applicant, if at all, lies before the Supreme Court in accordance with *Article 163(4)* of the *Constitution* and not by way of revision before this Court. 23. Without prejudice to the objection on jurisdiction, the Respondent contends that the sentence of life imprisonment was the mandatory sentence prescribed by *Section 8(2)* of the *Sexual Offences Act* for defilement of a child aged eleven years or less, the complainant having been found to be ten years old at the time of the offence. 24. The Respondent relies on the Supreme Court’s decision in ***Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amici Curiae), Petition No. E018 of 2023, [2024] KESC 34 (KLR),*** contending that the Supreme Court settled the constitutionality and legality of mandatory minimum sentences under the *Sexual Offences Act* and clarified that the decision in ***Francis Karioko Muruatetu & another v Republic [2017] eKLR*** did not invalidate such sentences. 25. It is further contended that the Court of Appeal applied that position in the Applicant’s own case and affirmed that the mandatory life sentence imposed under *Section 8(2)* of the *Sexual Offences Act* was lawful. The Respondent therefore maintains that the legality of the Applicant’s sentence has already been conclusively determined. 26. The Respondent further contends that the Applicant’s reliance on *Article 20(4)(a)* of the *Constitution,* the *International Covenant on Civil and Political Rights,* the decision of theEuropean Court of Human Rights in***Vinter and Others v United Kingdom***and the *United Nations Standard Minimum Rules for the Treatment of Prisoners* cannot displace binding decisions of the Supreme Court of Kenya on the constitutionality of mandatory sentences under the *Sexual Offences Act.* 27. It is argued that, under Kenyan law, a sentence of life imprisonment is not an indeterminate sentence without any avenue for relief, as the Applicant may seek remission, pardon or commutation through the Power of Mercy Advisory Committee established under *Article 133* of the *Constitution* and the *Power of Mercy Act.* 28. The Respondent does not dispute the Applicant’s good conduct and rehabilitation while in custody, including his participation in spiritual, technical and vocational programmes and his acquisition of certificates and a diploma in Biblical Studies. However, it is contended that such evidence, though commendable, is properly placed before the Power of Mercy Advisory Committee and cannot confer jurisdiction upon this Court to revise a sentence already affirmed on appeal. 29. In conclusion, the Respondent contends that the application is incompetent and an abuse of the process of the Court, this Court being *functus officio* in respect of the legality of the Applicant’s sentence, which was conclusively determined by the Court of Appeal. 30. The Respondent consequently urges the Court to find that the application lacks merit and proceeds to dismiss the same, with the Applicant being at liberty to pursue any relief relating to his period of incarceration through the Power of Mercy process. 31. In canvassing the application, the Applicant relied on the decision in ***Fredrick Kibienda v Republic, Criminal Revision No. E008 of 2024 at Vihiga*** and contends that the High Court possesses supervisory jurisdiction which enables it to review sentences and that the present application properly invokes that jurisdiction. 32. The Applicant submits that he has been incarcerated since 2009 and has therefore served approximately 17 years in prison. He contends that the life sentence is indeterminate and, in the circumstances, degrading and inconsistent with the constitutional values of human dignity, freedom and rehabilitation. 33. Relying on *Article 20(4)(a)* of the *Constitution, Article* *10(3)* of the *International Covenant on Civil and Political Rights,* the general rules of international law and the decision in ***Vinter and Others v United Kingdom,*** he submits that all prisoners, including those serving life sentences, should have the possibility of rehabilitation and release where rehabilitation has been achieved. 34. He further argues that the period of incarceration, together with the isolation, exclusion, frustration and stigma associated with imprisonment, constitutes sufficient punishment, particularly in view of his rehabilitation and transformation during his incarceration. 35. The Applicant further contends that the indeterminate and unreviewable nature of his life sentence violates his rights to human dignity and freedom and security of the person under *Articles 28* and *29* of the *Constitution,* particularly the right not to be subjected to torture or cruel, inhuman or degrading treatment or punishment. 36. He submits that sentencing should be proportionate and should take into account the circumstances of the offence, the offender and the victim, as well as the objectives of justice, reformation, restoration and rehabilitation. 37. The Applicant argues that a sentence should not be excessive or harsh, particularly in the case of a first offender, and relies on ***Hezekiah Mwaura Kibe v Republic [1976] KLR 118*** and the *Sentencing Policy Guidelines* in support of the submission that the offender’s antecedents, character, possibility of reform and social reintegration are relevant sentencing considerations. 38. The Applicant submits that he has used his period of incarceration constructively by participating in various rehabilitation, spiritual, technical and vocational programmes, through which he has acquired certificates and diplomas. 39. He further relies on the recommendation from Kibos Maximum Security Prison as evidence of his good conduct and rehabilitation. 40. He describes himself as remorseful and submits that he has lived peacefully with fellow inmates and prison authorities throughout his incarceration. 41. He contends that, although he was a first offender at the time he committed the offence, he has since learnt from his experience and punishment, become fully aware of the consequences of crime and is now deserving of a second chance in life. 42. The Applicant submits that he is currently 47 years old, comes from a poor background and has spent approximately 17 years in prison. He contends that continued incarceration without any prospect of release would make reintegration into society increasingly difficult and would ruin the remainder of his life. 43. He submits that he has acquired sufficient life skills to enable him to reintegrate into society and live a self-supporting and law-abiding life if granted an opportunity to do so. 44. Relying on the objectives of imprisonment under the ***Mandela Rules*** and the rehabilitative purpose of the correctional system, as well as ***Douglas Muthaura Ntoribi v Republic, Miscellaneous Criminal Application No. 4 of 2015,*** he urges the Court to find that he has been sufficiently punished and rehabilitated. 45. The Applicant consequently urges the Court to exercise its jurisdiction in his favour, take into account the entire period he has spent in custody, and substitute the sentence of life imprisonment with a determinate, lenient and proportionate sentence. 46. He submits that such an order would afford him an opportunity to regain his dignity, reintegrate into society and live as a law-abiding citizen, and accordingly prays that the application be allowed in its entirety. 47. The Respondent did not file written submissions but relied entirely on the matters set out in the replying affidavit sworn by **Ms. Mercy Mutheu Muema.** 48. Having considered the application, the supporting affidavit, the replying affidavit and the Applicant’s submissions, the issues for determination are: 1. Whether this Court has jurisdiction to entertain the Applicant’s application for review and resentencing, notwithstanding that the sentence of life imprisonment was considered and affirmed by the High Court and subsequently by the Court of Appeal. 2. Whether, in view of the applicable law and the decisions of the Supreme Court and the Court of Appeal, the Applicant’s sentence of life imprisonment under *Section 8(2)* of the *Sexual Offences Act* is amenable to review or resentencing by this Court. 3. Whether the Applicant has established any constitutional or other legal basis warranting the review and substitution of the sentence of life imprisonment, having regard to his mitigation, period of incarceration, rehabilitation and prospects of reintegration into society. 4. What orders should issue on the application. 49. The first issue is one of jurisdiction. It is trite that jurisdiction is everything and that a court must down its tools once it finds that it lacks jurisdiction. The jurisdiction of the High Court is derived from the *Constitution* and statute and cannot be assumed merely because a party invokes constitutional provisions or cites a decision of another court. 1. The Applicant invokes *Articles 2(6), 20(4)(a), 28, 29* and *50(2)(q)* of the *Constitution, Sections 327, 362* and *364* of the *Criminal Procedure Code* and *Article 6(4)* of the *International Covenant on Civil and Political Rights.* 2. He also relies on the supervisory jurisdiction of the High Court and the decision in ***Fredrick Kibienda v Republic, Criminal Revision No. E008 of 2024 at Vihiga.*** 3. His essential complaint, however, is that the sentence of life imprisonment imposed upon him was mandatory, that the sentencing court did not have the opportunity to meaningfully consider his mitigation, and that his continued incarceration is unconstitutional and disproportionate. 4. I must first address the procedural manner in which those constitutional complaints have been presented. 5. The Applicant seeks, through a chamber summons in a miscellaneous criminal application, a declaration in substance that his sentence violates his constitutional rights to dignity and freedom and security of the person and that continued incarceration under the sentence constitutes cruel, inhuman or degrading punishment. 6. Those are constitutional questions falling within the jurisdiction conferred upon the High Court by *Article 165(3)(b)* and *(d)* of the *Constitution.* 7. The *Constitution* has established a specific jurisdiction for the determination of such questions. *Article 165(3)(b)* confers upon the High Court jurisdiction to determine whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened, while *Article 165(3)(d)* confers jurisdiction to determine questions respecting the interpretation of the *Constitution,* including whether a law or anything done under the authority of the *Constitution* or any law is inconsistent with or in contravention of the *Constitution.* 8. The invocation of those provisions does not, however, mean that a party may raise and seek determination of a substantive constitutional challenge in any form of proceedings of his choice. 9. The present application is not a constitutional petition. Nor is it an appeal. It is an application seeking the review and substitution of a sentence under the criminal jurisdiction of this Court. 10. The Applicant cannot, by simply invoking *Articles 2(6), 20, 28, 29* and *50* of the *Constitution,* convert a revisionary or miscellaneous criminal application into a constitutional petition for purposes of challenging the constitutional validity of the sentence or the statutory provision under which it was imposed. 11. This is particularly important because the Applicant’s complaints are not merely incidental to the exercise of an existing criminal jurisdiction. They constitute the very foundation of the relief sought. He asks this Court to determine that the sentence is constitutionally objectionable because of its alleged indeterminate nature, the alleged absence of a meaningful prospect of release and the alleged failure to take into account his mitigation and subsequent rehabilitation. 12. Those are substantive constitutional issues which, if pursued, must be raised in proceedings properly invoking the constitutional jurisdiction of the High Court, with the necessary pleadings and procedural safeguards. 13. The Applicant’s reliance on *Article 165(3)* of the *Constitution* therefore does not assist him. *Article 165(3)* confers jurisdiction on the High Court, but it does not itself authorise the Court to disregard the procedural and jurisdictional limits of the particular jurisdiction invoked by a litigant. A court may possess constitutional jurisdiction and, at the same time, lack jurisdiction to grant the specific relief sought through the particular proceedings before it. 14. In any event, the constitutional questions raised by the Applicant cannot be used to circumvent the final determination of the sentence by the appellate courts. The Applicant challenged both his conviction and sentence before the High Court and thereafter before the Court of Appeal. The sentence was therefore not merely imposed by the trial court and left unexamined. It was the subject of appellate scrutiny. 15. The Court of Appeal, in its judgment of 13th March, 2026, expressly determined that the sentence was lawful and was not harsh or excessive in the circumstances of the case. 16. The Applicant now seeks, in substance, to have this Court revisit the same sentence on the basis of the same broad complaints concerning its mandatory nature, proportionality, mitigation and the length of his incarceration. The question therefore arises whether the High Court can exercise revisionary or supervisory jurisdiction over a sentence imposed by the Court of Appeal. In my view, the answer is plainly in the negative. 17. *Article 165(6)* of the *Constitution* expressly provides that the High Court has supervisory jurisdiction over subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court. *Article 165(7)* further provides for the exercise of that supervisory jurisdiction over the entities referred to in *sub-Article (6).* 18. The Court of Appeal is a superior court to the High Court. Equally, the High Court cannot exercise supervisory jurisdiction over another judge of the High Court sitting as a court of equal jurisdiction. 19. The constitutional architecture is therefore clear. The High Court supervises subordinate courts and the bodies identified in *Article 165(6);* it does not supervise the Court of Appeal. Nor does one High Court judge exercise supervisory jurisdiction over another High Court judge. 20. The Applicant’s submission that the High Court possesses a “unique” supervisory jurisdiction extending to superior courts is, with respect, inconsistent with the express limitation contained in *Article 165(6).* 21. The same conclusion follows from *Section 362* of the *Criminal Procedure Code.* The provision empowers the High Court to call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of a finding, sentence or order recorded or passed, and as to the regularity of the proceedings. 22. The jurisdiction is therefore a supervisory and revisionary jurisdiction over subordinate courts. It is not an appellate jurisdiction over the Court of Appeal. 23. The Applicant’s application seeks to have this Court alter the sentence which the Court of Appeal has already considered and affirmed. That relief is not available under *Section 362* of the *Criminal Procedure Code.* To grant it would require this Court to sit in judgement over the decision of the Court of Appeal and to substitute its own view of the appropriate sentence for that of the superior appellate court. The High Court has no such jurisdiction. 24. The Applicant’s reliance on *Section 327(1)* and *(2)* of the *Criminal Procedure Code* is equally misplaced. Those provisions concern the reservation and determination of questions arising in the course of a trial before the High Court. They do not confer a general or independent jurisdiction upon the High Court to reopen and resentence a person whose conviction and sentence have been finally determined through the appellate process. *Section 327* cannot therefore be invoked as a vehicle for revisiting the sentence imposed upon the Applicant and affirmed by the Court of Appeal. 25. The decision in ***Fredrick Kibienda v Republic*,** upon which the Applicant places considerable reliance, cannot confer jurisdiction upon this Court where none exists. A decision of a court cannot enlarge the jurisdiction conferred by the *Constitution* or statute. 26. Moreover, the Applicant’s case is materially distinguishable in the essential respect that his sentence has been the subject of a substantive determination by the Court of Appeal. The Applicant is not seeking to correct an unresolved illegality in a sentence imposed by a subordinate court. He is asking this Court to revisit a sentence which has already been appealed against and affirmed by the Court of Appeal. 27. I therefore find that this Court has no jurisdiction, whether under *Article 165(6)* of the *Constitution, Sections 327, 362* or *364* of the *Criminal Procedure Code,* or any other provision invoked by the Applicant, to alter, substitute or otherwise interfere with the sentence imposed upon him and affirmed by the Court of Appeal. 28. The second issue for determination is whether the Applicant is entitled to have the sentence of life imprisonment reviewed and substituted. 29. Even if, for argument case, this Court had the jurisdiction discussed in the first issue, the application would still fail on its merits. The Applicant’s arguments on the legality and propriety of the sentence are, in substance, a re-litigation of matters that have already been placed before and determined by the two appellate courts. 30. The Applicant was sentenced to life imprisonment under *Section 8(2)* of the *Sexual Offences Act.* He challenged the conviction and sentence before the High Court. His appeal was dismissed. He thereafter appealed to the Court of Appeal. The Court of Appeal considered the appeal and expressly held that the sentence imposed upon him was lawful and was not harsh or excessive in the circumstances of the case. 31. The Applicant now invites this Court to reconsider whether the mandatory nature of the sentence deprived the trial court of sentencing discretion, whether his mitigation was sufficiently considered, whether the sentence is proportionate and whether his period of incarceration and rehabilitation justify the substitution of the sentence. Those are not new questions. They go directly to the legality, propriety and proportionality of the sentence that was before the Court of Appeal. 32. The doctrine of finality in litigation would be rendered meaningless if a party who has unsuccessfully challenged a sentence on appeal could return to the High Court and invite it to determine the same question afresh under the label of revision or resentencing. The jurisdiction of revision cannot be employed as a substitute for an appeal, still less as a means of creating a further appellate tier over the Court of Appeal. 33. The position is reinforced by *Article 163(7)* of the *Constitution,* which provides that all courts, other than the Supreme Court, are bound by the decisions of the Supreme Court. More fundamentally for present purposes, the hierarchical structure of the courts means that the High Court is bound by decisions of the Court of Appeal on matters within the latter’s appellate jurisdiction. The High Court cannot overrule, vary or effectively sit on appeal over a decision of the Court of Appeal. 34. The Applicant’s contention that the sentence should now be reviewed because he has served approximately 17 years, has been rehabilitated and is ready to reintegrate into society does not alter the position. Those matters may be relevant to an appropriate constitutional or statutory mechanism for seeking remission, commutation, pardon or other relief. They do not confer jurisdiction upon this Court to reopen a sentence which has already been affirmed on appeal. 35. The third issue for me to address is whether the constitutional and legal challenge to life imprisonment provides a basis for the orders sought. 36. The Applicant’s argument that the sentence of life imprisonment is unconstitutional because it is indeterminate and lacks a meaningful prospect of release must also be considered against the binding decision of the Supreme Court in ***Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) [2024] KESC 34 (KLR)*.** 37. In that case, the Supreme Court reiterated that the decision in ***Francis Karioko Muruatetu & another v Republic; Katiba Institute & 5 others (Amicus Curiae) (Petitions 15 & 16 of 2015 (Consolidated) [2017] KESC 2 (KLR)*** did not invalidate all mandatory or minimum sentences in the *Penal Code,* the *Sexual Offences Act* or any other statute. 38. The Supreme Court further held that the question of the constitutional validity of mandatory or minimum sentences other than the mandatory death sentence for murder must be properly filed, presented and fully argued before the High Court and, if necessary, escalated through the appropriate appellate channels. 39. The Supreme Court further reaffirmed that the sentence prescribed by *Section 8* of the *Sexual Offences Act* remains lawful for as long as the statutory provision remains valid. 40. The Applicant’s challenge to the mandatory or indeterminate nature of his sentence, therefore, cannot be determined by this Court in the manner proposed. The Supreme Court has already settled the legal effect of ***Muruatetu*** on mandatory and minimum sentences under the *Sexual Offences Act.* 41. Comparative and international jurisprudence may, where appropriate, inform constitutional interpretation. It cannot, however, override the *Constitution*, the applicable statute and binding decisions of the Supreme Court. 42. The question before this Court is not whether the Court might, as a matter of policy or comparative constitutional reasoning, prefer a different sentencing regime. It is whether this Court has jurisdiction to substitute the sentence imposed upon the Applicant and affirmed by the Court of Appeal. It does not. 43. The Applicant’s reliance on provisions of the *International Covenant on Civil and Political Rights* is similarly unavailing. That provision, in my understanding concerns the right to seek pardon or commutation of a sentence. It does not confer jurisdiction upon the High Court to revise a sentence imposed by the Court of Appeal. Any relief available under the constitutional and statutory framework governing the power of mercy must be pursued through the mechanism established for that purpose. 44. The Applicant’s reliance on *Articles 28* and *29* of the *Constitution* raises serious constitutional questions. However, those questions cannot be substantively determined in the present proceedings in the manner sought by the Applicant. A substantive constitutional challenge to the validity of the sentence, the statutory provision under which it was imposed, or the constitutionality of continued incarceration would have to be brought in a properly constituted constitutional petition. 45. This Court cannot convert the present miscellaneous criminal application into such a petition and, in the process, use it to circumvent the final determination of the Applicant’s sentence by the Court of Appeal. 46. The Applicant’s rehabilitation, good conduct, educational achievements, remorse and readiness to reintegrate into society are commendable. The Court does not minimise the significance of those matters. They may be relevant in the consideration of an appropriate petition for the exercise of the power of mercy under *Article 133* of the *Constitution* and the *Power of Mercy Act.* They cannot, however, confer upon this Court a jurisdiction which the *Constitution* and statute do not grant. 47. It is also important to distinguish between a challenge to the legality of a sentence and a plea for mercy or clemency based on subsequent conduct and rehabilitation. The former is a judicial question. The latter falls within the constitutional and statutory framework governing the power of mercy. The Applicant’s evidence of rehabilitation is substantially directed at the latter consideration. It cannot be used to reopen the judicial determination of the sentence by the appellate courts. 48. I therefore find that the Applicant has not established any legal basis upon which this Court may review and substitute the sentence of life imprisonment. 49. What orders should then issue on the Applicant’s summons? The Applicant has exhausted his ordinary appellate remedies. His conviction and sentence were considered by the High Court and thereafter by the Court of Appeal. The application, as a result, fails and is accordingly dismissed. 50. This file is closed. DELIVERED (virtually) DATED and SIGNED this 21st day of July, 2026. **JOE M. OMIDO** **JUDGE** APPLICANT: Present, virtually. RESPONDENT: **Ms. Muema.** COURT ASSISTANTS: **Mr. Ngoge** & **Mr. Juma.**