https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8236

Mwangi alias Kimani v Republic (Petition E025 of 2026) [2026] KEHC 8236 (KLR) (11 June 2026) (Judgment) Neutral citation: [2026] KEHC 8236 (KLR) Republic of Kenya In the High Court at Kibera Petition E025 of 2026 DR Kavedza, J June 11, 2026 Between Dancun Thuku Mwangi alias Kimani Petitioner and Republic Respondent Judgment 1.The Petitioner was charged and after a full trial convicted for the offence of murder contrary to section 203 as read with section 204 of the Penal Code, Cap 63 of the Laws of Kenya. This court sentenced the petitioner to death. 2.The Petitioner has now approached this Court by way of a constitutional petition seeking an order for resentencing. He contends that the mandatory nature of the sentence prescribed under section 296 of the Penal Code is unconstitutional. He states that he has exhausted all appeal avenues and now invokes sections 216 and 329 of the Criminal Procedure Code (Cap. 75, Laws of Kenya), urging the Court to consider his mitigation and substitute the death sentence with a definite term of imprisonment. 3.The issue for determination is whether the death sentence imposed upon the Petitioner is unconstitutional in light of the recent pronouncements of the Supreme Court on mandatory and minimum sentences. 4.Article 50(2)(p) of the Constitution guarantees the right to benefit from the least severe punishment where sentencing law changes after conviction. Article 165(3)(b) grants the High Court jurisdiction to determine the constitutionality of any act or omission. 5.In 2016, the judiciary developed the Sentencing Guidelines as a response to the challenges experienced by judges and judicial officers. The Guidelines were developed pursuant to section 35(2) of the Judicial Service Act 2011. These guidelines recognised that sentencing is perhaps one of the most intricate aspects of the administration of trial justice. The guidelines collated the principles of law that should guide courts in the exercise of their discretion, so that sentences for analogous circumstances are delivered as transparently and consistently. 6.Since the formulation of the SPGs of 2016, the criminal justice landscape around sentencing has evolved significantly, prompting NCAJ to review (The Sentencing Policy Guidelines 2023) the Guidelines to align with the emerging jurisprudence, and make them more responsive to the justice needs of Kenyans. The revised SPGs provide guidance in sentencing where the mandatory minimum and maximum sentences are concerned, as well re sentencing hearings. 7.Consequently, the evolution of law and jurisprudence should grow in tandem with the Constitution while acknowledging the judiciary guidelines on sentencing. 8.It is equally my view that a sentence imposed on a convict has to meet the objectives of retribution, deterrence, rehabilitation, restorative justice, community protection and denunciation. Therefore, it is no longer necessary or desirable to hold a convict for an indeterminate amount of time as this does not meet the objectives of the sentencing policy guidelines. 9.It is significant to emphasize that indeterminate sentences deprive a convict of the opportunity to be heard in mitigation, while convicts facing lesser sentences are granted such an opportunity. The depravation constitutes unjustifiable discrimination, is unfair, and contravenes the principle of equality before the law as enshrined in Article 27 of the Constitution. 10.Additionally, an indeterminate life sentence, amounts to inhumane treatment and violates the right to dignity under Article 28 of the Constitution. It is also a principle of international law that all prisoners serving life sentences should be afforded the possibility of rehabilitation and the prospect of release if such rehabilitation is achieved. (See the decisions of the European Court of Human Rights: Vinter and others v. United Kingdom (Application nos. 66069/09, 130/10 and 3896/10) [2016] III ECHR 317 (9 July 2013) and Murray v. the Netherlands [GC], no. 10511/10, (26 April 2016) 11.In the instant case, the Petitioner was charged with the murder contrary to section 203 as read with 204 of the Penal Code. He was sentenced to death as per the law. The Petitioner has now served twenty (20) years imprisonment and seeks a definite term. A resentencing exercise thus falls within the law and applicable jurisprudence. 12.Having considered the petition, supporting grounds, mitigation, the time served, the gravity of the injuries inflicted, and the principles in the cited authorities, a determinate sentence is appropriate. 13.I hereby set aside the death sentence and substitute it with a sentence of thirty (30) years’ imprisonment. The sentence shall run from 18th July 2005 the date of Petitioner’s arrest, pursuant to section 333(2) of the Criminal Procedure Code.Orders accordingly JUDGEMENT DATED AND DELIVERED VIRTUALLY THIS 11TH DAY OF JUNE 2026D. KAVEDZAJUDGEIn the presence of:Petitioner PresentMr. Mutuma for the RespondentKarimi Court Assistant.