https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8933

Kareri v Director of Public Prosecutions (Miscellaneous Application E096 of 2024) [2026] KEHC 8933 (KLR) (23 June 2026) (Ruling) Neutral citation: [2026] KEHC 8933 (KLR) Republic of Kenya In the High Court at Nakuru Miscellaneous Application E096 of 2024 PN Gichohi, J June 23, 2026 Between Nak/338/020/Ls Annthony Kariuki Kareri Applicant and Director Of Public Prosecutions Respondent Ruling 1.The Applicant herein moved this Court way of an undated Notice of Motion filed on 26th September 2024 seeking:-1.Re- hearing of the sentence in criminal case 244 of 1996 S.P.M Court at Nakuru.2.That this court be pleased to receive mitigation from the Applicant herein for consideration in of an appropriate sentence devoid of mandatory death sentence which has since been declared unconstitutional by the Supreme Court of Kenya.3.This court be pleased to issue any other order it may deem fit for the interest of justice. 2.In his supporting Affidavit, he told the court that he was convicted and sentenced to death in Criminal Case No. 244 of 1999 for the offence of robbery with violence contrary to section 296 (2) of the Penal Code. His appeal to High Court in Criminal Appeal No. 79 of 2000 was dismissed on 5th August 2004. His further appeal to the Court of Appeal at Nakuru in Cr. Appeal No.184 of 2004 was equally dismissed. 3.Citing the case of William Kititny v Republic 2018 KLR and Joseph Kaberia Kahiga & others vs AG Petition No. 168 of 2010, he urged this court to be persuaded and conduct re-sentence hearing. 4.The Respondent filed a Replying Affidavit sworn on 29th October, 2025 by its Prosecution Counsel, James Kihara based on his involvement in the proceedings and access to the relevant record in Nakuru CM’ S Criminal Case No. 244 of 1999. 5.He states that Nakuru CM’s Criminal Case No. 244 of 1999, the Accused/Applicant and three others were charged with the offence of robbery with violence contrary to section 296 (2) of the Penal Code. The particulars being that on the night of 26th December 1998, at Sparks Wine Wines and Spirits Bar, Shabaab, Nakuru, the Applicant and others, while armed with dangerous weapons, namely pistols, robbed Violet Akungu Awiti of a JVC radio cassette (serial number 166C7230) valued at Kshs. 18,000/-, a bottle of Vodka, a bottle of Captain Morgan, and a bottle of Cinzano, all valued at Kshs. 12,299/- and cash of Kshs. 5,369/-. 6.The Applicant was convicted of the main offence of robbery with violence and sentenced to death, the mandatory sentence under section 296(2) at the time, while his three co-accused were acquitted for lack of evidence. He appealed to the High Court in Criminal Appeal No. 79/000, arguing that the trial magistrate misdirected herself in applying the doctrine of recent possession, which appeal was dismissed on 5th August 2004, as confirmed in Antony Kariuki Kareri v Republic [2004] eKLR by Ag. Judge of Appeal W.S. Deverell. 7.He unsuccessfully challenged his conviction twice in superior courts, vide Criminal Appeal No. 79/000, dismissed on 5th August 2004, and Criminal Appeal No. 184/04, denied on 3rd March 2006. 8.In regard to the current application, Mr. Kihara deponed that traditionally, Section 296(2) mandated the death sentence for robbery with violence, as was applied in the applicant's case. 9.On contention by the Applicant on the constitutionality of the mandatory death sentence, he deponed that in the Supreme Court in Francis Karioko Muruatetu & Another v Republic (Directions on Implementation) [Advisory Opinion No. 1 of 20211 [2021] eKLR clarified that Muruatetu does not automatically invalidate all mandatory or minimum sentences beyond murder, and challenges to robbery with violence must proceed afresh through the High Court, potentially escalating to superior courts for analogous relief. 10.He stated that while the death penalty remains lawful, its mandatory imposition for murder was ruled unconstitutional in Muruatetu for denying judicial discretion, and this principle extends to robbery with violence under Section 296(2) of the Penal Code . 11.He averred that ultimately, Supreme Court in Muruatetu sated that the High Court has the power to resentence in cases involving mandatory death penalties. He argued that post-2021, the superior courts have consistently resentenced death row convicts , under Section 296 (2) of the Criminal Procedure Code, to custodial terms ranging from 15 to 30 years, while considering the gravity offence, offender culpability and societal impact. 12.Consequently, he stated that the Respondent is in favor of the Applicant’s prayer for resentencing, in light of Muruatetu decision and subsequent judicial practice. He therefore prayed that this Court applies the Muruatetu precedent and imposes a suitable sentence in place of the death penalty, pursuant to Section 329 of the Criminal Procedure Code. Determination 13.This court has considered the Application, the Replying Affidavit by the Respondent and the case law cited by the parties. Indeed, this Application is not opposed. No doubt, the Applicant has moved from the lower court up to the court of Appeal but his quest before the superior courts to have the conviction and sentence quashed failed. 14.The Court notes that while sentencing the applicant herein to suffer death, the learned Magistrate had stated:-“As for the 3rd accused person Antony Kareri Kariuki, he led the police to his house and eventually to his sister’s house, where the radio cassette was recovered. The court has no doubt that he is the one who led the police to where they eventually recovered the radio cassette. No evidence was adduced to show previous grudges that would have made the police to frame him. The cassette recovered and its manual exhibit number 2 bore the same serial numbers. The court has no doubt therefore that this was the same radio cassette stolen from the complainant’s premises. The robbery occurred on the 26th December, 1998 and the radio cassette was recovered on the 5th of January, 1999…. The court has no doubt that the 3rd accused knew about this robbery and he knew that the radio cassette was one of the stolen items. The evidence violating the possibility of him being a handler.” 15.Regarding re-sentencing , this Court is alive to the jurisprudence on mandatory death sentence as it evolved from the Muruatetu case. In William Okungu Kittiny v R [2018] eKLR, and while referencing the Muruatetu case, the Court of Appeal held:-“...The appellant was sentenced to death for robbery with violence under Section 296 (2). The punishment provided for murder under Section 203 as read with Section 204 and for robbery with violence and attempted robbery with violence under Section 296 (2) and 297 (2) is death. By Article 27(1) of the Constitution, every person has inter alia, the right to equal protection and equal benefit of the law. Although the Muruatetu's case specifically dealt with the death sentence for murder, the decision broadly considered the constitutionality of the death sentence in general... From the foregoing, we hold that the findings and holding of the Supreme Court particularly Paragraph 69 applies mutatis mutandis to Section 296 (2) and 297 (2) of the Penal Code. Thus, the sentence ... is a discretionary ...” 16.In the circumstances herein, then this Court has power to resentence the Applicant. In doing so, the court notes reasoning by the trial court in sentencing the Applicant to death. , thus considering the seriousness of the offence and the circumstances therein. 17.When the Applicant appeared before this Court for hearing on 15th July 2025, he gave the court the chromoly of the case up to the Court of Appeal as stated herein. Alive to the fact that he is currently serving a life sentence, he urged the court to substitute the life sentence with another sentence bearing in mind that he has been in custody since year 2000. 18.It is noted that the Respondent has made reference to current jurisprudence where the courts have resentenced to custodial terms. Considering the nature of the offence under which he was convicted, he is now resentenced to term of 30 years imprisonment. In compliance with the mandatory nature of Section 333 (2) of the Criminal Procedure Code, the sentence shall run from the date of his arrest. DATED AND SIGNED AT NAIROBI THIS 22ND DAY OF JUNE, 2026.PATRICIA GICHOHJUDGEDELIVERED AT NAKURU THIS 23RD DAY OF JUNE, 2026.………………………DR. JOSEPH SERGONJUDGE