https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7159

Harun v Republic (Criminal Petition E003 of 2025) [2026] KEHC 7159 (KLR) (15 May 2026) (Ruling) Neutral citation: [2026] KEHC 7159 (KLR) Republic of Kenya In the High Court at Machakos Criminal Petition E003 of 2025 RC Rutto, J May 15, 2026 Between Peter Musyoka Harun Appellant and Republic Respondent Ruling 1.By a Petition dated 19th May 2025, the petitioners seek the following orders;a.A declaration that the mandatory death sentence is unconstitutional to the extent that it violates Articles 28 and 29(d) of the Constitution, by failing to uphold the Petitioner’s dignity and by subjecting him to inhuman and degrading treatment.b.A declaration that the Petitioner’s continued incarceration for the remainder of his natural life, without consideration of rehabilitation, is disproportionate and infringes his constitutional rights.c.A finding that the Petitioner is fit to serve a definite term of years, taking into account his mitigation as provided under Sections 216 and 329 of the Criminal Procedure Code.d.In the alternative, an order for revision of the Petitioner’s sentence in the interest of justice.e.Any other orders that this Court may deem just and appropriate. 2.The petition is premised on Articles 2, 10, 19, 20, 21, 22, 23 24, 25, 27, 28, 29 and 50 of the Constitution, as well as Article 10 of the International Convention on Civil and Political Rights (ICCPR). 3.The petitioner states that he was charged with the offence of murder contrary to section 203 as read with 204 of the Penal Code. Upon hearing the matter, the trial court delivered its judgment on 15th March 2007 convicting and sentencing him to suffer death. Aggrieved by that decision he appealed to the Court of Appeal in Criminal Appeal No 7 of 2007, but the appeal was dismissed. Thereafter, filed before the High Court, Criminal Application No 68 of 2019 seeking resentencing which application was dismissed on the basis that the Court lacked jurisdiction. 4.The Petition is opposed. The respondent reiterates the procedural history, noting that the Petitioner’s conviction and sentence were upheld on appeal, and that a subsequent resentencing application was also dismissed. The Respondent submits that the present Petition raises issues substantially similar to those canvassed in the earlier resentencing application, the only distinction being that it is now framed as a constitutional petition. 5.It is therefore the Respondent’s position that the Court is functus officio, and that the Petition is an abuse of the court process. Reliance is placed on, inter alia, Suleiman Shabal v IEBC and the ruling in Criminal Misc. Application No. 68 of 2019, urging the Court to decline jurisdiction. 6.In support of the Petition, the Petitioner filed its submissions. He submits that he is currently serving a life sentence at Kamiti Maximum Security Prison, following the commutation of his death sentence to life imprisonment. He challenges both the imposition of the mandatory death sentence and its subsequent commutation without judicial reconsideration. 7.He contends that mandatory sentencing is inconsistent with constitutional principles, as it fetters judicial discretion. He urges this Court to interpret the sentence provided by the Penal Code in a manner that conforms with constitutional values, including dignity, proportionality, and rehabilitation. That necessary alterations and adoptions should be included to incorporate constitutional values. 8.The Petitioner further submits that this Court has jurisdiction under Articles 22 and 23 of the Constitution to determine questions of violation of fundamental rights. He relies on Protus Buliba Shikuku v Attorney General [2012] eKLR and AOO & 6 Others v Attorney General [2017] eKLR, to support the proposition that constitutional jurisdiction may be invoked where a violation of rights is alleged. 9.He further argues that this Petition raises a weighty constitutional question to wit whether life imprisonment, particularly as a commuted sentence from the death penalty, constitutes a genuine mitigation of sentence or merely substitutes one rigid and severe punishment for another. He contends that such a sentence is inconsistent with evolving jurisprudence on proportionality and rehabilitation. 10.The Petitioner also relies on comparative jurisprudence, including Mithu v State of Punjab [1983] 2 SCR 690, where the Indian Supreme Court held that mandatory sentences that exclude judicial discretion are arbitrary and oppressive. Additionally, he cites Fatuma Hassan Salo v Republic [2006] eKLR, where the Court emphasized that sentencing is a judicial discretion that must be exercised based on sound legal principles, taking into account all relevant factors. 11.It is settled law that jurisdiction is everything, and without it the court must down its tools. While the Respondent contends that this Court is functus officio, it is equally well established that constitutional petitions occupy a distinct jurisdictional space. In AOO & 6 Others v Attorney General [2017] eKLR, the Court held that the existence of prior proceedings does not, of itself, bar a litigant from invoking constitutional jurisdiction where there is an allegation of violation of fundamental rights. 12.However, courts must guard against abuse of process through the re-litigation of matters that have been conclusively determined. In John Florence Maritime Services Ltd v Cabinet Secretary for Transport [2021] eKLR, the Supreme Court underscored that constitutional litigation must not be used as a vehicle to reopen finalized disputes. 13.In the present case, the Petitioner previously moved the Court through a resentencing application, which was dismissed. The issues now raised, in particular seeks to challenge to the sentence and the plea for its revision. These are substantially similar, albeit reframed as constitutional grievances. 14.In my view, the Petition does not disclose any new or distinct constitutional question that was incapable of being raised in the earlier proceedings. It is, in substance, an attempt to reopen the question of sentence under the guise of a constitutional petition. Such an approach offends the doctrine of finality in litigation and amounts to an abuse of the court process. 15.In the circumstances, I find that while this Court has jurisdiction to hear constitutional matters, the present Petition improperly seeks to reopen issues that have already been conclusively determined. The Petition does not disclose any fresh or distinct constitutional violation warranting the intervention of this Court. The Petition is therefore dismissed as it is an abuse of the court process. 16.Orders accordingly. DATED, SIGNED AND DELIVERED AT MACHAKOS THIS 15TH DAY OF MAY, 2026.RHODA RUTTOJUDGEIn the presence of;…………………… Appellant…………………… RespondentSelina Court Assistant