https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10594

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAKURU** **CRIMINAL MISC. APPLICATION NO. E110 OF 2023** **PETER MWANGI MWANGI……………………….…………….APPLICANT** **VERSUS** **REPUBLIC…………………………………………………….…RESPONDENT** **RULING** 1. The Applicant moved this Court by way of Notice of Motion under **Section 397** of the **Criminal Procedure Code,** seeking sentence review following the pronouncement by the Supreme Court in **Francis Karioko Muruatetu & Another vs Republic [2017].** He prays that this Court:- 2. **Reduces his sentence and impose a lenient one;** 3. **The remaining part of his sentence be suspended to be served on probation placement; and** 4. **The Court invokes Section 333(2) of the Criminal Procedure Code for the sentence to run from the date of arrest.** 5. The gravamen of the application is that he was charged with the offence of murder contrary to **Section 203** as read with **Section 204 of the Penal Code** in **Nakuru Criminal Case No. 105 of 2009.** The Trial Court convicted him for the offence of murder and sentenced to served 30 years imprisonment. 6. Aggrieved by the said decision, the Applicant lodged **Criminal Appeal No. 12 of 2012** challenging both the conviction and sentence. The Appeal was dismissed for lack merit affirming both the conviction and sentence. 7. The Respondent opposed the application by way of Replying Affidavit sworn on 3rd March, 2025 by **James Kihara,** Prosecution Counsel. He depones that the Applicant has not exhausted the appeal options and that this Court cannot proceed to review its decision or a decision by a Court of concurrent jurisdiction. That the only forum to deal with his prayers sought is to seek review in the Court of Appeal. 8. In his written submissions, the Applicant submits that the Judge failed to consider relevant factors such as his age as he was 40 years at the time of committing the offence and that he had demonstrated remorse ahead of sentencing. He submits that he has been in prison for over 14 years with considerably good reputation and has acquired relevant skills while in prison to enable him support his fellow inmates. 9. It is argued that the sentence imposed limits his right to freedom from torture cruel inhuman or degrading treatment or punishment or fair trial. He further submits that the sentence denies him the benefit of the least severe form of the prescribed punishment as well as violating **Article 24** of the **Constitution.** 10. The Applicant contends that the period of custody, when computed against his age, will extend to seventy years, which in effect would amount to life imprisonment. 11. The Respondent opted to rely on its Replying Affidavit. **Determination** 1. After considering the application and the respective arguments by both parties, the issue arising for determination is whether this Court should interfere with the sentence imposed on the Applicant. 2. The Prosecution has argued that this Court having pronounced the sentence cannot review its own decisions. That only the Court of Appeal has that power to do so. Further that the Applicant had not exhausted all avenues of appeal. 3. The record however shows the Applicant moved to the Court of Appeal vide **Criminal Appeal No. 12 of 2012** . His appeal was dismissed in entirety. In the circumstances, all avenues of appeal available have clearly been exhausted. 4. As to whether this Court can entertain the application for review, the Supreme Court in the case of ***Macharia vs Kenya Commercial Bank Limited & 2 Others [2012] KESC 8 (KLR) eKLR****,* held that: ***“68] A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law….as to whether a Court of law has jurisdiction to entertain a matter before it, is not one of mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, the Court cannot entertain any proceedings.*** 1. On the same breadth, on 6th July 2021, the Supreme Court gave guidelines on the application of the ***Francis Muruatetu & Another vs Republic****;* ***Katiba Institute & 5 others (Amicus Curiae)* *[2021] KESC 31 (KLR*)** under which the Applicant has approached this Court. To be specific, the Apex Court issued the following directions: - ***[16].To the extent directly relevant to the matters under review in these directions, we note the Attorney General in his Report, together with the Task Force recommended, that:*** 1. ***Life imprisonment be substituted where the Penal Code previously provided for the death penalty, with the option of life imprisonment without parole for the most serious of crimes; and that if not abolished, the death penalty should only be reserved for the rarest of rare cases involving intentional and aggravated acts of killing.*** 2. ***All offenders, subject to the mandatory death penalty, including those convicted and sentenced prior to 2010, who are serving commuted sentences, will be eligible for re-sentencing, including all offenders sentenced to death as at the time of the decision which was made on December 14, 2017.*** 3. ***Where an appellant has lodged an appeal against a conviction and/or sentence, the appellate court must, at any stage before judgment, remit the case to the trial court for re-sentencing…….”*** ***[18] Having considered all the foregoing, to obviate further delay and avoid confusion, we now issue these guidelines to assist the courts below us as follows:*** * 1. ***…*** 2. ***…*** 3. ***All offenders who have been subject to the mandatory death penalty and desire to be heard on sentence will be entitled to re-sentencing hearing.*** 4. ***..*** 5. ***…*** 6. ***An application for re-sentencing arising from a trial before the High Court can only be entertained by the High Court, which has jurisdiction to do so and not the subordinate court*** 7. ***In re-hearing sentence for the charge of murder, both aggravating and mitigating factors such as the following, will guide the court;(a)Age of the offender;(b)Being a first offender;(c)Whether the offender pleaded guilty;(d)Character and record of the offender;(e)Commission of the offence in response to gender-based violence;(f)The manner in which the offence was committed on the victim;(g)The physical and psychological effect of the offence on the victim’s family;(h)Remorsefulness of the offender;(i)The possibility of reform and social re-adaptation of the offender;(j)Any other factor that the court considers relevant.*** 8. ***Where the appellant has lodged an appeal against sentence alone, the appellate court will proceed to receive submissions on re-sentencing.*** 9. ***These guidelines will be followed by the High Court and the Court of Appeal in ongoing murder trials and appeals. They will also apply to sentences imposed under section 204 of the Penal code before the decision in Muruatetu.*** 1. The effect of the above decision and attendant guidelines and directions is that offenders subjected to the mandatory death penalty and desired to be heard on sentence would be entitled to re-sentencing hearing. 2. The Supreme Court emphasised that an application for re-sentencing arising from a trial before the High Court could only be entertained by the High Court. 3. In this case, it is noted that at the time of conviction and sentence, the death sentence remained lawful as the pronouncements in *Muruatetu 1* and *Muruatetu 2*had not yet been made. 4. However, the Applicant herein was not handed the mandatory death sentence contemplated by the Penal Code. Instead, the High Court sentenced him to serve 30 years imprisonment which is definite and determinate sentence. That was despite that the offence of murder is no doubt a grave one. The record indeed shows that the Court considered that the Applicant was a first offender. The Court also considered his mitigation and that he was remorseful. 5. Against that backdrop, a sentence of thirty (30) years’ imprisonment at the time was an exercise of the trial Court’s discretion. It was affierned by the Court of Appeal . This Court therefore declines invitation to interfere with that sentence. . 6. Regarding time spent in custody, Section 333 (2) of the Criminal Procedeure Code are in mandatory terms. That was emphasised in***Ahamad Abolfathi Mohammed & another v Republic [2018] KECA 855 (KLR),*** where the Court of Appeal held that:- ***“…..The second is the failure by the Court to take into account in a meaningful way, the period that the appellants had spent in custody as required by section 333(2) of the Criminal Procedure Code…By dint of section 333(2) of the Criminal Procedure Code, the Court was obliged to take into account the period that they had spent in custody before they were sentenced. Although the learned judge stated that he had taken into account the period the appellants had been in custody, he ordered that their sentence shall take effect from the date of their conviction by the trial Court. With respect, there is no evidence that the Court took into account the period already spent by the appellants in custody. “Taking into account” the period spent in custody must mean considering that period so that the imposed sentence is reduced proportionately by the period already spent in custody. It is not enough for the Court to merely state that it has taken into account the period already spent in custody and still order the sentence to run from the date of the conviction because that amounts to ignoring altogether the period already spent in custody. It must be remembered that the proviso to section 333(2) of the Criminal Procedure Code was introduced in 2007 to give the Court power to include the period already spent in custody in the sentence that it metes out to the accused person. We find that the first appellate Court misdirected itself in that respect and should have directed the appellants’ sentence of imprisonment to run from the date of their arrest on 19th June 2012.”*** 1. In the circumstances, and considering the date the Applicant was convicted and sentenced and when the Appeal in the Court of Appeal was determined, it is fair that this Court invokes the provisions of Section 333 (2) and the holding in ***Ahamad Abolfathi Mohammed & another*** (supra). 2. It is noted that the Applicant was in custody from date of arrest being 18th December, 2009. 3. In conclusion therefore, this court issues the following Orders:- 4. **The prayers to reduce the sentence or suspend the sentence are dismissed.** 5. **The sentence of 30 years imprisonment shall run from the date of arrest being 18th December 2009.** **Dated and signed at Nairobi this 6th Day of July, 2026.**  **PATRICIA GICHOH** **JUDGE** **Delivered at Nakuru this 9th Day of July 2026.** **………………………** **DR. JOSEPH SERGON** **JUDGE**