https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8412

Muhia v Director of Public Prosecutions (Constitutional Criminal Petition E001 of 2026) [2026] KEHC 8412 (KLR) (Crim) (16 June 2026) (Judgment) Neutral citation: [2026] KEHC 8412 (KLR) Republic of Kenya In the High Court at Nyandarua Criminal Constitutional Criminal Petition E001 of 2026 KW Kiarie, J June 16, 2026 Between Joseph Njuguna Muhia Petitioner and The Director of Public Prosecutions Respondent Judgment 1.Joseph Njuguna Muhia, the petitioner herein, filed a petition dated the 15th day of April 2026. He is seeking the following orders:a.A declaration that the petitioner's rights under articles 25(c) and 50 of the Constitution were violated.b.A declaration that the conviction and sentence in Criminal Case No. 378 of 2017 are unconstitutional, unlawful and null and void.c.An order quashing the conviction and sentence imposed against the Petitioner.d.In the alternative, an order directing a retrial before a different magistrate.e.An order for compensation under article 23(3)(e) of the Constitution.f.Any other relief that this honourable court may deem fit and just. 2.The petition was premised on the following grounds:The petitioner argues that section 296(2) of the Penal Code is unconstitutional because:a.While the death penalty is not yet abolished, its mandatory imposition without considering individual culpability is arbitrary.b.Freedom from cruel, inhuman, or degrading treatment (article 25 & 29):A “one-size-fits-all” death sentence fails to account for the circumstances of the offender, amounting to inhuman treatment.c.A fair trial includes a fair sentencing process. By pre-determining the sentence, the law denies the petitioner the right to present mitigating evidence.d.The Legislature cannot dictate a fixed sentence that removes the Judiciary's power to weigh evidence and exercise discretion. 3.The first respondent opposed the petition and argued that:a.That in the said matter, the petitioner was lawfully charged, tried and convicted for the offence of robbery with violence under section 296(2) and ultimately sentenced to the death sentence and his subsequent appeals to both the High Court and the Court of Appeal were dismissed.b.That under article 26(3) of the Constitution, deprivation of life pursuant to a sentence imposed by virtue of written law is permitted as a rider/exception to the right to life.c.That the Supreme Court in Muruatetu 2 declared the mandatory death sentence unconstitutional in respect of the offence of murder only. Further, in its directions, it did not apply to other offences, including robbery with violence under section 296(2) of the Penal Code; therefore, the death penalty under the said remains valid in law as the lawful sentence.d.That the petitioner’s rights under articles 25, 29, and 50 were not violated as he was accorded a fair trial, was allowed to defend himself before being convicted, and a lawful sentence was imposed as permitted by article 26(3) of the Constitution; therefore, no violation.e.That resentencing would therefore be misconceived, and should not be available as of right in the circumstances herein.f.That the petition is bad in law and an abuse of the court process. 4.Article 26 (3) of the Constitution of Kenya provides:"A person shall not be deprived of life intentionally, except to the extent authorised by this Constitution or other written law." 5.This article requires no interpretation. the Constitution of Kenya recognises the death penalty as a lawful sentence. In the case of Francis Karioko Muruatetu & another v Republic [2017] eKLR stated:(112)Accordingly, with regards to the claims of the petitioners in this case, the court makes the following orders:(a)The mandatory nature of the death sentence as provided for under section 204 of the Penal Code is hereby declared unconstitutional. For the avoidance of doubt, this order does not disturb the validity of the death sentence as contemplated under article 26(3) of the Constitution.(b)This matter is hereby remitted to the High Court for re- hearing on sentence only, on a priority basis, and in conformity with this judgment.(c)The Attorney General, the Director of Public Prosecutions and other relevant agencies shall prepare a detailed professional review in the context of this judgment and order made with a view to setting up a framework to deal with sentence re-hearing cases similar to that of the petitioners herein. The Attorney General is hereby granted twelve (12) months from the date of this judgment to give a progress report to this court on the same.(d)We direct that this judgment be placed before the Speakers of the National Assembly and the Senate, the Attorney-General, and the Kenya Law Reform Commission, attended with a signal of the utmost urgency, for any necessary amendments, formulation and enactment of statute law, to give effect to this judgment on the mandatory nature of the death sentence and the parameters of what ought to constitute life imprisonment. [Emphasis added] 6.The petitioner recounted his two appeals following his conviction by the trial court. All the issues raised in this petition should have been addressed during the first appeal, which had access to the trial court's record and was better suited to assess whether the trial had prejudiced the petitioner. This court cannot determine if article 50 of the Constitution was violated, as he asserts. 7.Based on the previous analysis, I conclude that the petitioner is attempting a second attempt, albeit disguised. Therefore, the petition is dismissed. DELIVERED AND SIGNED AT NYANDARUA, THIS 16TH DAY OF JUNE, 2026.KIARIE WAWERU KIARIEJUDGE