https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8939

Ndwiga v Republic (Miscellaneous Criminal Application E010 of 2025) [2026] KEHC 8939 (KLR) (23 June 2026) (Ruling) Neutral citation: [2026] KEHC 8939 (KLR) Republic of Kenya In the High Court at Vihiga Miscellaneous Criminal Application E010 of 2025 JN Kamau, J June 23, 2026 Between Peter Njeru Ndwiga Applicant and Republic Respondent Ruling Introduction 1.The Applicant herein was charged with the offence of robbery with violence contrary to Section 295 as read with Section 296(2) of the Penal Code Cap 63 (Laws of Kenya). He was convicted and sentenced to death. 2.He lodged an appeal in Kakamega High Court Criminal Appeal No 82 of 2014 which was consolidated with Kakamega High Court Criminal Appeal No 83 of 2014. The same was dismissed. He informed this court that he never appealed to the Court of Appeal. 3.On 30th July 2024, he filed an undated Chamber Summons application seeking resentencing to a least prescribed sentence other than the life sentence and that the sentence commence from the date of his arrest pursuant to Section 333(2) of the Criminal Procedure Code. 4.In his Affidavit in support of his application, he averred that the death sentence was commuted to life imprisonment following the presidential pardon. He stated that he was a first time offender, that he had been of good conduct and character, he was forty-nine (49) years old, he had been in prison for a period of ten (10) years and had attained several Certificates from various engagements, he was remorseful and had close ties with family. He added that it was the duty of the court was to promote, protect, promote, preserve and bring into reality the values and the principles that inform the Constitution. He thus urged this court to give him a second chance to pick up the pieces of his life. 5.His Written Submission dated 12th January 2026 were filed on 13th January 2026 while those of the Respondent were dated 24th February 2026 and filed on 11th March 2026. The Ruling herein is based on the said Written Submissions that both parties relied upon in their entirety. Legal Analysis 6.The Applicant submitted that his application was grounded on Articles 25(a), (c), (d) and 50(1) & (2) of the Constitution of Kenya, 2010, Section 169(1) of the Criminal Procedure Code, Section 296(2) of the Penal Code, the Judiciary Sentencing Policy Guidelines (2016), and the judicial decisions in Shaban Salim Ramadhan & Others vs Republic [Petition No 5 of 2022] and Julius Kitsao Manyeso vs Republic [Criminal Appeal No 12 of 2021] [2023] KECA 827 (KLR). 7.He pointed out that the indeterminate life imprisonment violated his right to human dignity under Article 28 of the Constitution and constituted inhuman and degrading treatment contrary to Article 25(a) and Article 29 of the Constitution. He added that his sentence also amounted to unjustifiable discrimination under Article 27 as it denied him the opportunity to present mitigation and the prospect of review or parole that was available to persons sentenced to determinate terms as was stated in the aforementioned cases and in Francis Karioko Muruatetu & Another vs Republic [Petition No 15 & 16 of 2015] [2017] eKLR. 8.He further stated that in the case of Shaban Salim Ramadhan & Others vs Republic (Supra), the mandatory death sentence under Sections 296(2) and 297(2) of the Penal Code was declared unconstitutional. He also referred the court to the case of Dennis Nyaga Njiru vs Republic (2019) eKLR where the sentence was substituted with five (5) years and Sebastian Okwero Mrefu vs Republic (2014) eKLR where court held that the period served was sufficient. 9.He reiterated his mitigating factors which he argued showed substantial rehabilitation and a high prospect of successful reintegration into society upon release and, hence weighed heavily in favour of substituting the indeterminate sentence with a definite term. 10.He also invoked Section 333(2) of the Criminal Procedure Code and placed reliance on the case of Republic vs Stephen Mweizela Mutuku & 2 Others [2020] eKLR, where the court held that it was mandatory for the period which an accused had been held in custody prior to being sentenced to be taken into account when meting out the sentence. 11.The Respondent opposed his application on the ground that Section 23(4) of the Powers of Mercy Ac (sic) stated that the President's Powers to commute sentence was final and that courts could only intervene only in instances where there was a breach of Article 47 of the Constitution and where the applicant demonstrated the existence of the grounds of Judicial Review. 12.It also cited the case of Francis Karioko Muruatetu & Another vs Republic (Supra) where it was held that if an appeal was pending before the Court of Appeal, a resentencing could be done if the High Court was satisfied that the appeal had been withdrawn. 13.It pointed out that since the Applicant had already exercised his right of appeal and his death sentence was commuted by the President, he was therefore, not serving a mandatory death sentence to bring him within the purview of the Muruatetu guidelines. 14.It referred the court to the case of Joseph Kinyuru Kirimbi vs Republic Misc Criminal Application No E431 of 2014 (KLR citation not given) where it was held that the court was deemed to be functus officio on the matter of sentence once the President exercised his authority under the Constitution. The court also pointed out that the decision of the President in the exercise of the Constitutional Power under Article 133 as well as his power under the Power of Mercy Act could only be subjected to Judicial Review on grounds of procedural fairness and fair administrative action. 15.It was emphatic that the Applicant had not demonstrated the breach of any of the rules of natural justice and procedural unfairness which would give this court power to review the President's decision commuting his death sentence to life imprisonment. 16.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. 17.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. 18.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).” 19.In the case of Ramadhan & 8 Ohers vs 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) and 297(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 20.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.” 21.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. 22.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. 23.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. 24.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. 25.While considering the present application for re-sentencing, 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. 26.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 Applicant 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 him to mitigate and then re-sentence him 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). 27.In addition, this court also considered if the powers that the President had under Section 23(4) of the Power of Mercy Act Cap 94 (Laws of Kenya) limited powers the High Court had in reviewing sentence under Article 50(2)(q) of the Constitution of Kenya. 28.Article 50(2)(q) of the Constitution of Kenya states as follows:-“Every accused person has the right to a fair trial, which includes the right if convicted, to appeal to, or apply for review by, a higher court as prescribed by law.” 29.Article 133 of the Constitution of Kenya provides as follows:-“On the petition of any person, the President may exercise a power of mercy in accordance with the advice of the Advisory Committee established under clause (2), by—a.granting a free or conditional pardon to a person convicted of an offence;b.postponing the carrying out of a punishment, either for a specified or indefinite period;c.substituting a less severe form of punishment; ord.remitting all or part of a punishment.” 30.Further, Section 23(4) of the Power of Mercy stipulated that:-“The decision of the President for each petition made under this section shall be final.” 31.It was evident that the power exercised by the President regarding the nature of sentence a convict would serve after being convicted was different from the power that the High Court could exercise on review under Article 50(2)(q) of the Constitution of Kenya. The power exercised by the President was discretionary and was an act or mercy after being advised by the Power of Mercy Committee under Section 22(1) of the Power of Mercy Act on the suitability of a petitioner to enjoy the benefit of the President’s mercy. 32.On the other hand, the powers for re-sentencing by the High Court were to correct a breach, violation, contravention or infringement of a fundamental right in the Bill of Rights. The roles of the Executive and the Judiciary were independent of each other, distinct and separate. The President exercised an executive function while the High Court exercised a judicial function. 33.The Respondent’s argument that the decision of the President was final was flawed. This is because Section 23(4) of the Power of Mercy was clear that the decision of the President was under that section (emphasis court). It was the understanding of this court that in the event the President declined the petition, the petitioner had no recourse to any other authority. Such a petitioner could not appeal to the High Court following such refusal by the President. 34.Indeed, Section 22(1) (k) of the Power of Mercy Act recognised the different roles as it made reference to the other avenues that were available to a petitioner and provided that:-“The Committee shall, in making a recommendation under Article 133 of the Constitution and section 21(1)(c) consider where the petitioner has opted to pursue other available remedies, the outcome of such avenue” 35.This court was, therefore, clear in its mind that it was seized of jurisdiction to entertain an application for re-sentencing. In this regard therefore, the court 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. 36.To avoid further delays in this matter, this court found it prudent to consider the mitigation and re-sentencing of the Petitioner herein. With regard to the time that the Applicant had spent in remand during trial, this court determined that the same would be considered after his mitigation and after he furnished this court with supporting documents. Disposition 37.For the foregoing reasons, the upshot of this court’s decision was that the Applicant’s undated Chamber Summons application was merited and the same be and is hereby allowed in the following terms:-a.That the Applicant do provide documents to support his mitigation by 7th July 2026.b.That the Probation Office to file a Pre-Sentence Report by 23rd July 2026.c.That the Applicant be and is hereby directed to appear before this court for mitigation and sentencing on 17th September 2026 at 11.00 am. 38.It is so ordered. DATED AND DELIVERED AT VIHIGA THIS 23RD DAY OF JUNE 2026J. KAMAUJUDGE