https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12314

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT VIHIGA** **CRIMINAL PETITION NO E005 OF 2025** **ELISHA MAIYA OMULAMA.…………….…….……………………… PETITIONER** **VERSUS** **REPUBLIC………………………………………………….…………………RESPONDENT** **JUDGMENT** **INTRODUCTION** 1. The Petitioner herein was with one, Charles Amboko Anemba, jointly charged with the offence of robbery with violence contrary to Section 296(2) of the Penal Code Cap 63 (Laws of Kenya) This was in respect to robbery with violence charges that occurred on 10th March 2013 and 20th December 2012. 2. The Learned Trial Magistrate, Hon Grace Mmasi, (SPM) convicted and sentenced them to death **Vihiga Criminal Case No 544 of 2013 Republic vs Elisha Maiya Omulama & Charles Amboko Anemba**. The Learned Trial Magistrate Hon S.N Mwangi (SRM) convicted and sentenced them to death in **Vihiga Criminal Case No 503 of 2013 Republic vs Elisha Maiya Omulama & Charles Amboko Anemba**. 3. Being aggrieved by the convictions and death sentences imposed, they lodged appeals in **Kakamega Criminal Appeal 51 & 52 of 2014 Charles Amboko Anemba & Another vs Republic [2015] KEHC 3599 (KLR)**, appealing the decision in **Vihiga Criminal Case No 544 of 2013** and **Kakamega** **Criminal Appeal No 1 of 2014, Elisha Maiya Omulama & Another vs Republic [2017] KEHC 2733 (KLR),** appealing the judgment in **Vihiga Criminal Case No 503 of 2013.** Both appeals were dismissed and the sentences upheld. 4. They lodged second appeals to the Court of Appeal vide **Kisumu** **Criminal Appeal 117 of 2017 [2023] KECA 339 (KLR) Anemba & another vs Republic** and **Criminal Appeal 137 of 2015 [2023] KECA 43 (KLR) Omulama & another vs Republic** and both appeals were dismissed. 5. On 28th October 2024, they jointly filed undated Notice of Motion application in **Miscellaneous Criminal Application No E097 of 2024** seeking to benefit from the provision of Section 333(2) of the Criminal Procedure Code. They also sought an order that sentences to run concurrently. In their said application that was supported by their Affidavits, they invoked Article 25 of the Constitution and stated that the death sentence failed to conform to the tenets of fair trial. They also invoked Article 27, 28 and 165 (3)(b) of the Constitution. 6. They urged the court to substitute the indeterminate life sentence with a determinate sentence and the court order that sentences in **Vihiga Criminal Case No 503 of 2013**, **Vihiga Criminal Case No 544 of 2013** and **Hamisi Criminal Case No 632 of 2013** do run concurrently. They also urged the court to consider Section 333(2) of the Criminal procedure Code while resentencing. 7. The Petitioner’s undated Notice of Motion application filed on 25th April 2025 herein sought similar orders as in **Miscellaneous Criminal Application No E097 of 2024**. Notably, **Petition No E005 of 2025** and **Miscellaneous Criminal Application No E097 of 2024** were consolidated to be heard together as both files were sharing the same lower court files. 8. His Written Submissions were dated 4th August 2025 and filed on 7th August 2025 while those of the Respondent were dated and filed on 16th October 2025. The Ruling herein is therefore based on the said Written Submissions. **LEGAL ANALYSIS** 1. The Petitioner stated that his death penalties were commuted to life imprisonment as per the Presidential decree. He invoked Articles 50(2)(q), 25(d), 51(2) of the Constitution and Section 327, 329, 216, 346, 362 of the Criminal Procedure Code and cited **Silas Maliolo Zakayo & Others vs Republic Petition No E002 & E003 of 2024** (KLR citation not given) and stated that by virtue of the said case and Sections 327(1)(2), 346 and 362 of the Criminal Procedure Code, this court had jurisdiction to call any proceeding for the purpose of satisfying itself as to the correctness, legality or priority of any finding, sentence or order of any subordinate court. 2. He stated that he had been living peacefully with his fellow inmates and prison authority while he engaged himself in various rehabilitation programmes. He pointed out that he was a first-time offender and he was now conversant with the consequences of crime. He promised not to engage in any other crime. He averred that continued incarceration without any prospect of release would spoil his entire life. He urged the court to consider him as a reformed person who deserved a second chance in life by substituting the death penalty with an appropriate sentence in line with **David Otiato vs Republic Cr Petition No E008 of 2024** (KLR citation not given). 3. On its part, the Respondent did not oppose the application herein. It referred this court to Articles 50(2)(q), (6) and 165 of the Constitution of Kenya, 2010 and submitted that the Petitioners had exhausted all the avenues for appeal and hence, this court could hear their resentencing application. It cited the case of **Petition No 15 and 16 (Consolidated) of 2015 Francis Karioko Muruatetu & Another vs Republic** (eKLR citation not given) where it was held that the High Court could entertain an application for re-sentencing upon being satisfied that the appeal at the Court of Appeal had been withdrawn. 4. It asserted that in considering the said decision and Sections 216 and 329 of the Criminal Procedure Code, the Petitioners were not given an opportunity to mitigate in the trial court before sentencing. It added that, however, the decision in ***Muruatetu Case*** did not outlaw the death sentence which was still applicable as discretionary maximum sentence. 5. In the case of **Mbugua & 6 Others vs Attorney General & 3 Others (Constitutional Petition E002 & E003 of 2024 (Consolidated)) [2025] KEHC 1248 (KLR)** (24 February 2025) (Judgment), this very court held that it was discriminatory to deny offenders who had been convicted of the offence of robbery with violence and attempted robbery with violence the right to have their mitigation during trial considered, while the non-capital offenders enjoyed that right. 6. It recognised that under Article 27(1) of the Constitution of Kenya, persons who had been convicted for robbery with violence and attempted robbery with violence were also equal before the law, they had a right to be protected before the law and had to derive equal benefit from the law as the non- capital offenders. 7. The court’s decision was in line with the directions of the Supreme Court on 6th July 2021 in **Francis Karioko Muruatetu and Another vs Republic [2017] eKLR** (commonly now known as Muruatetu II) that the question of constitutionality of the death sentence in robbery with violence cases ought to commence at the High Court and thereafter escalated to the Court of Appeal, if necessary. It rendered itself as follows:- “**46.To clear the confusion that exists with regard to the mandatory death sentence in offences other than murder, we direct in respect of other capital offences such as treason under section 40 (3), robbery with violence under section 296 (2), and attempted robbery with violence under section 297 (2) of the Penal Code, that a challenge on the constitutional validity of the mandatory death penalty in such cases should be properly filed, presented, and fully argued before the High Court and escalated to the Court of Appeal, if necessary, at which a similar outcome as that in this case may be reached. Muruatetu as it now stands cannot directly be applicable to those cases**(emphasis court).” 1. In the case of **Ramadhan & 8 others v General & another (Petition 5 of 2022 & Constitutional Petition 6 of 2022 (Consolidated)) [2024] KEHC 1173 (KLR**) (6 February 2024) (Judgment), Sewe J looked at the mandatory nature of the death sentence under Section 296(2) of the Penal Code and declared it unconstitutional. She further directed that the petitioners be presented before the respective sentencing courts for sentence re-hearing upon appropriate applications 2. In the case of **Mbugua & 6 Others vs The Hon Attorney General** (Supra) as consolidated with **Alfred Eyase Kinamundu & 2 Others vs the Hon Attorney General & Others** (Supra), this court looked at the aspect of re-sentencing of persons who had been convicted under Section 296(2) and Section 297(2) of the Penal Code and rendered itself as follows:- **“67.The purpose of incarceration is rehabilitation and reformation of prisoners. It was psychological torture for a prison to take numerous courses to improve himself or herself in prison but never use those skills in the society. Indeed, learning of skills had the purpose of easing the integration of prisoners back into the society. Life imprisonment denied convicts who were on life sentence hope for a better future. It was discriminatory that all convicts had hope of going home other than those who had been convicted of the offence of robbery with violence and attempted robbery with violence. There had to be a determinate period within which a person had to atone for their sins.”** 1. The long indeterminate incarceration while undergoing rehabilitation programs without the prospect of being released was in the considered opinion of this court a blatant violation of the Petitioners’ right to dignity contrary to Article 28 of the Constitution of Kenya. 2. For those who had been convicted and did not have the benefit of mitigating before being sentenced such as the Petitioners herein, they had a reprieve in Article 50(2) of the Constitution of Kenya which sets out some of the principles that were considered to constitute fair trial. One of these principles was the right to lodge an appeal or apply for review in a higher court, if convicted as stipulated in Article 50 (2) (q)) of the Constitution of Kenya. 3. Such mitigation, which would include the behaviour while in prison and proof of reformation and possibility of reintegration in the society which would enable an appellate and/or review court have a holistic view of the case. During appeal or review of a case, a higher court would have had all the facts and circumstances of the accused on record to enable it assess the appropriate sentence in case there was merit for a sentence reduction. 4. In this regard, it found that applicants seeking re-sentencing ought to file documents to support their mitigating factors. These documents could include certificates of programmes they had undergone in prison leading to their rehabilitation and recommendation letters from the In charges of prisons. 5. This court noted that appellants who included **Francis Karioko Muruatetu in the Court of Appeal case of Gachanja & 7 Others (Criminal Appeal 51 of 2004) [2011] KECA 402 (KLR)** (20 May 2011) Judgment were re-sentenced by the High Court on 16th December 2019 in **Misc Criminal No 394 of 2017** consolidated with **Misc Criminal Applications Nos 614, 28, 560, 589, 590 and 586 of 2018**. 6. In the same vein, as the Court of Appeal had not yet dealt with the constitutionality of the mandatory nature of death sentence in respect of the Petitioner herein. This court, therefore, found and held that it would not be violating the doctrine of stare decisis if it determined that it could allow them to mitigate and then re-sentence them in line with the case of **Mbugua & 6 Others vs The Hon Attorney General** (Supra) as consolidated with **Alfred Eyase Kinamundu & 2 Others vs the Hon Attorney General & Others** (Supra) and **Ramadhan & 8 others v General & Another** (Supra). 7. In this regard therefore, the court has recognised that as it had both original and appellate jurisdiction to hear criminal and civil cases as provided in Article 165(3)(a) of the Constitution of Kenya and further it could review the decision of the lower court as provided under Article 50 (2) (q) of the Constitution of Kenya, it did not have to send the lower court file back to the lower court for re-sentencing. 8. To avoid further delays in this matter, this court found it prudent to consider the mitigation and re-sentencing of the Petitioner herein as it already had the lower court file. Though the presenting reports were filed for both Petitioners, this court noted that the application was devoid of recommendation letter from the prison authority and various certificates pertaining to the programs the Petitioners may have undertaken while in prison. 9. The Petitioners had also prayed that the sentences do run concurrently but this court could not order the said sentences to run concurrently as the different sentences were meted out by different courts for offences that occurred on different dates. 10. Indeed, Section 14(1) of the Criminal Procedure Code Cap 75 (Laws of Kenya) states that:- **“Subject to subsection (3), when a person is convicted at one trial of two or more distinct offences, the court may sentence him, for those offences, to the several punishments prescribed therefor which the court is competent to impose;** **and those punishments when consisting of imprisonment shall commence the one after the expiration of the other in the order the court may direct, unless the court directs that the punishments shall run concurrently.”** 1. This court found and held that it would consider the question of the time the Petitioner spent in prison in line with Section 333(2) of the Criminal Procedure Code Cap 75 (Laws of Kenya) at the time of re-sentencing, if at all. **DISPOSITION** 1. For the foregoing reasons, the upshot of this court’s decision was that the Petitioner’s undated Notice of Motion application filed on 25th April 2025 was partially merited and the same be and are hereby allowed in the following terms: - 1. **THAT the Petitioner do furnish this court with a recommendation letter from the prison authority and certificates he might have acquired during the incarceration period by 31st August 2026.** 2. **THAT the Probation Office file a Pre-Sentence Report by 31st August 2026.** 3. **THAT the Petitioner be and is hereby directed to appear before this court for mitigation and sentencing on 6th October 2026 at 2.30 pm.** 2. It is so ordered. **DATED** and **DELIVERED** at **VIHIGA** this **27th** day of **July** 2026 **J. KAMAU** **JUDGE**