https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8475

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **MILIMANI LAW COURTS** **CONSTITUTIONAL AND HUMAN RIGHTS DIVISION** **CONSTITUTIONAL PETITION E797 OF 2025** **STEPHEN MAINA THIGA ............................................................PETITIONER** **VERSUS** **THE HON. ATTORNEY GENERAL ....................................1ST RESPONDENT** **THE DIRECTOR OF PUBLIC PROSECUTIONS..............2ND RESPONDENT** **JUDGMENT** 1. The petitioner is Stephen Thiga Maina. From the contents of his petition dated 27/10/2025 which is supported by his sworn affidavit of even date, the petitioner was charged with the offence of Robbery with violence contrary to Section 296(2) of the penal Code vide Thika CMCR Case No. 2604/2005. He was tried and found guilty as charged, convicted and sentenced to death. 2. It is important to note that at that time, the law did not permit capital offender suspects to be released on bond pending trial. Therefore, the petitioner remained in custody pending his trial and from the record, his trial must have been fast-tracked because he was in remand for only nine (9) months before during trial and upon conviction, he was sentenced to suffer death. 3. It is equally important to note that 296(2) of the Penal Code provides for death sence upon conviction for robbery with violence and therefore the trial court in sentencing the petitioner herein, acted in accordance with the statutory command, which gives no discretion for any lesser sentence. 4. Following his conviction and sentence, the petitioner appealed to the High Court vide HCRA 182 OF 2006 of Nairobi. The High Court heard and dismissed his appeal both on conviction and sentence thereby upholding the conviction and sentence meted out by the trial court. 5. The petitioner was determined to get his freedom. He therefore did not stop there. He appealed to the Court of Appeal at Nairobi vide Criminal Appeal No. 36 of 2006. However, lady luck was not on his side. The Court of Appeal which was then the highest court on the land, after hearing his appeal, dismissed it thereby upholding the judgment of the High Court which affirmed the conviction and sentence imposed by the trial court. 6. The petitioner’s fate seemed sealed. That was not to be. In December, 2017 the Supreme Court of Kenya rendered itself in a landmark judgment in **Francis Karioko Muruatetu & another versus Republic [2017]e KLR** which struck down the mandatory nature of death sentence prescribed in convictions for murder by Section 204 of the Penal Code. That judgment which was interpreted and applied by all trial courts to the advantage of many convicted persons who had been handed mandatory sentences, with beneficiaries being robbery with violence and sexual offences convicts. This is so, considering that robbery with violence carries death sentence while the sexual offences Act prescribes minimum mandatory sentences depending on the age of the defiled minor and or manner in which the sexual offence on an adult was committed. 7. Since the Supreme Court had sent the convict ***Francis Karioko Muruatetu*** for resentencing before the High Court which had condemned him to suffer death, many murder convicts started streaming the High Court which is the trial court for murder cases to seek for resentencing. Indeed, since the Muruatetu decision, many murder convicts have benefitted from the window opened by the Supreme Court. 8. This is not to say that the Supreme Court declared section 204 of the constitution and therefore, death sentence to be unconstitutional, blanketly. What the Supreme Court stated was that the death sentence imposed on murder convicts was unconstitutional to the extent or in so far as it deprives the trial court the unfettered judicial discretion to impose appropriate sentence, having regard to the circumstances of each case and secondly, that the death sentence deprived or denied the convict the right to mitigate. 9. That is not entirely what trial courts understood the judgment of the Supreme Court to be saying. The trial courts understood the judgment to apply to all other cases where the law prescribes mandatory sentences hence, the subsequent application of the judgment to robbery with violence and sexual offences. 10. A flood gate of petitions reached the court especially the High Court, filed by not only murder convicts but all robbery with violence and sexual offences convicts. 11. Over a period of time, the High Court station would wake up to hundreds of petitions for resentencing. Because the High Court was ‘implementing’ the decision of the Supreme Court, it did all it could to give effect to the decision of the Supreme Court. 12. For convicts who had filed appeals to the Court of Appeal, they even withdrew those appeals in order to pursue resentencing petitions before the High Court. To date, there are floodgates of resentencing petitions. In there are robbery with violence and sexual offences convicts. 13. Then came the ***Muruatetu II- Muruatetu & another v Republic; Katiba Institute & 5 others (Amicus Curiae) (Petition 15 & 16 of 2015) [2021] KESC 31 (KLR) (6 July 2021) (Directions)*** which clarified the Muruatetu I and provided guidelines for sentencing in Murder cases as follows at paragraph 9 of the Directions: ***“9. To obviate further delay and to avoid confusion, the court issued the following guidelines: -*** 1. ***The decision of Muruatetu and the guidelines herein were applicable to sentences of murder under sections 203 and 204 of the Penal Code only.*** 2. ***The Judiciary Sentencing Policy Guidelines were to be revised in tandem with the new jurisprudence enunciated in Muruatetu.*** 3. ***All offenders who had been subject to the mandatory death penalty and desired to be heard on sentence were entitled to a re-sentencing hearing.*** 4. ***Where an appeal was pending before the Court of Appeal, the High Court would entertain an application for re-sentencing upon being satisfied that the appeal had been withdrawn.*** 5. ***In the re-sentencing hearing, the court had to record the prosecution’s and the appellant’s submissions under section 329 of the Criminal Procedure Code, as well as those of the victims before deciding on a suitable sentence.*** 6. ***An application for re-sentencing arising from a trial before the High Court could only be entertained by the High Court, which had jurisdiction to do so and not the subordinate court.*** 7. ***In a sentence re-hearing for the charge of murder, both aggravating and mitigating factors such as the following, would guide the court: -*** 1. ***Age of the offender;*** 2. ***Being a first offender;*** 3. ***Whether the offender pleaded guilty;*** 4. ***Character and record of the offender;*** 5. ***Commission of the offence in response to gender-based violence;*** 6. ***The manner in which the offence was committed on the victim;*** 7. ***The physical and psychological effect of the offence on the victim’s family;*** 8. ***Remorsefulness of the offender;*** 9. ***The possibility of reform and social re-adaptation of the offender; and,*** 10. ***Any other factor that the court considered relevant.*** 1. ***Where the appellant had lodged an appeal against the sentence alone, the appellate court would proceed to receive submissions on re-sentencing.*** 2. ***The guidelines would be followed by the High Court and the Court of Appeal in ongoing murder trials and appeals. They would also apply to sentences imposed under section 204 of the Penal Code before the decision in Muruatetu.*** 8. More importantly, the Supreme Court clarified its decision and stated that the decision only applied to murder cases, not any other case where there was mandatory sentence. The apex court further clarified that it had not outlawed death sentence which remained lawful and that in appropriate cases, the trial court could imposed death penalty. This clarification came rather too late because the robbery with violence and sexual offences convicts had already benefitted from the implementation of that decision. 9. The harm had already occurred, yet it could not be reversed. Once sentences were reduced, some convicts were left with Zero term sentences and for some because of their good conduct and reformation reports from prisons authorities, the courts set them free. 10. No one could go back to return them to prison. For others, the not so lucky, they were caught up by the Muruatetu II clarification. But Muruatetu II did not close windows and doors for “Capital” offenders who had received mandatory sentences. They still had the opportunity to file petitions to the High Court challenging the mandatory nature of those sentences. Many have done so and decisions coming from the High Court and Court of Appeal speak to that. In the instant case, the petitioner lost all his appeals. 11. For avoidance of doubt, the Supreme Court stated as follows in its directions at paragraphs 7 to 11: ***“7.In the meantime, it is public knowledge, and taking judicial notice, we do agree with the observations of both Mr. Hassan and Mr Ochiel, that while the report of the Task Force appointed by the Attorney General was awaited, courts below us have embarked on their own interpretation of this decision, applying it to cases relating to section 296(2) of the***[***Penal Code***](https://new.kenyalaw.org/akn/ke/act/1948/81)***, and others under the***[***Sexual Offences Act***](https://new.kenyalaw.org/akn/ke/act/2006/3)***, presumably assuming that the decision by this court in this particular matter was equally applicable to other statutes prescribing mandatory or minimum sentences. We state that this implication or assumption of applicability was never contemplated at all, in the context of our decision.*** ***8.While it is regrettable that the report was not filed timeously and these directions not issued immediately, there can be no justification for courts below us, to take the course that has now resulted in the pitiable state of incertitude and incoherence in the sentencing framework in the country, giving rise to an avalanche of applications for re-sentencing. Appellants whose sentences were confirmed by the High Court and the Court of Appeal have returned to the magistrate’s courts, where, without reference to the decisions of the two superior courts, have had those sentences revised. The magistrate’s courts have also, in some instances entertained applications for re-sentencing in murder cases, clearly without jurisdiction. Likewise, some appellants whose appeals under various statutes prescribing mandatory or minimum sentences, that are pending hearing and determination, either in the High Court or the Court of Appeal, have also had their sentences revised by the magistrate’s courts without disclosing the fact that pending appeals exist in superior courts.*** ***9.In addition, there is no harmony in the revised sentences by the courts. The sentences which have been imposed after re-sentencing hearing range from commutation to the period served, probation, reduction of sentences to some specific period, or the preservation of the maximum sentences.*** ***10.It has been argued in justifying this state of affairs, that, by paragraph 48 of the Judgment in this matter, or indeed the spirit of the Judgment as a whole, the court has outlawed all mandatory and minimum sentence provisions; and that although***[***Muruatetu***](https://new.kenyalaw.org/akn/ke/judgment/kesc/2017/2)***specifically dealt with the mandatory death sentence in respect of murder, the decision's expansive reasoning can be applied to other offenses that prescribe mandatory or minimum sentences. Far from it, in that paragraph, we stated categorically that;*** ***48Section 204 of the***[***Penal Code***](https://new.kenyalaw.org/akn/ke/act/1948/81)***deprives the court of the use of judicial discretion in a matter of life and death. Such law can only be regarded as harsh, unjust and unfair. The mandatory nature deprives the courts of their legitimate jurisdiction to exercise discretion not to impose the death sentence in appropriate cases. Where a court listens to mitigating circumstances but has, nonetheless, to impose a set sentence, the sentence imposed fails to conform to the tenets of fair trial that accrue to accused persons under article 25 of the***[***Constitution***](http://kenyalaw.org/kl/index.php?id=398)***; an absolute right”.*** ***Reading this paragraph and the Judgment as a whole, at no point is reference made to any provision of any other statute. The reference throughout the Judgment is only made to section 204 of the***[***Penal Code***](https://new.kenyalaw.org/akn/ke/act/1948/81)***and it is the mandatory nature of death sentence under that section that was said to deprive the “courts of their legitimate jurisdiction to exercise discretion not to impose the death sentence in appropriate cases”.*** ***11.The ratio decidendi in the decision was summarized as follows;*** ***69.Consequently, we find that section 204 of the***[***Penal Code***](https://new.kenyalaw.org/akn/ke/act/1948/81)***is inconsistent with the***[***Constitution***](http://kenyalaw.org/kl/index.php?id=398)***and invalid to the extent that it provides for the mandatory death sentence for murder. For the avoidance of doubt, this decision does not outlaw the death penalty, which is still applicable as a discretionary maximum punishment”.*** ***We therefore reiterate that, this court’s decision in***[***Muruatetu***](https://new.kenyalaw.org/akn/ke/judgment/kesc/2017/2)***, did not invalidate mandatory sentences or minimum sentences in the Penal Code, the***[***Sexual Offences Act***](https://new.kenyalaw.org/akn/ke/act/2006/3)***or any other statute.” [emphasis added]*** 1. The petitioner in this case admits in paragraph 7 of his supporting affidavit that after the pronouncement in the Muruatetu I case, he applied for resentence vide Misc. Cr. Application No. 118/2018 at Thika CM’s court where the court resentenced him to serve 20 years imprisonment. This was on 13/11/2019. 2. In view of the ***Muruatetu II*** decision above, I have no doubt that the petitioner benefited from a default situation. This is because the ***Mururatetu II*** had not been pronounced clarifying ***Muruatetu I,*** when the petitioner was resentenced in a robbery with violence case. 3. Now, because the Judicial Officer who resentenced the petitioner did not, in commuting the death sentence, order that the new sentence do take into account the period that the petitioner herein had been in custody and which now the petitioner claims that it is in his constitutional right, save that he wants more to wit, the nearly 19 years that he was in prison plus the 9 months in remand prior to being sentenced to be taken into account and credited so that he can secure his liberty from prison. 4. The petitioner contends that the respondents denied him equality before the law in that he cannot claim for remission of sentence under section 46 of the prisons Act. According to the petitioner, there are other cases such as **Jona & 87 others Vs Kenya Prison Service & 2 others petition 15/2021 KEHC 457 (KLR)** where the judge ordered for resentencing taking into account the period spent in custody as per Section 333(2) of the Criminal Procedure Code. 5. He avers that following the above case, he unsuccessfully applied to Kiambu High Court, vide Mis. Criminal application No. E220/2022 but that the court declined to grant him the orders. He claims that the Kiambu file was transferred to Nairobi. 6. According to the petitioner, the over 20 years that he has served in prison surpasses the objectives for sentencing and that therefore he should be discharged from prison to enable him go home and work, while he is still energetic. 7. The petitioner’s oral submissions made on 9/6/2026 in court mirror the above facts which I have summarized from his petition and supporting affidavit. 8. The 1st respondent Attorney General filed a notice of preliminary objection dated 28th April 2026 contending that the petition is res-judicata, the issues raised herein having been heard and conclusively determined by the High Court in Review Application No. E003 of 2023, that this court lacks jurisdiction to reopen and entertain or interrogate matters that have been heard and determined with finality; that the petition does not meet the threshhold for a constitutional petition as established in **Anarita Karimi Njeru Vs R (1979) eKLR** and affirmed in **Mumo Matemo vs trusted Society of Human Rights Alliance & 5 others [2013] EKLR**; that this court should dismiss the petition as it does not raise any novel issues for determination. 9. The 2nd respondent orally submitted supporting the preliminary objection filed by the 1st respondent contending that the petitioner having been resentenced to 20 years from death sentence, this petition is res-judicata hence it should be dismissed. 10. In a rejoinder, the petitioner submitted that he had been in prison now for 21 years and has 7 years and 3 months to go. That he wants the period served in prison until he was resentenced, to be taken into account. **DETERMINATION** 1. I have considered the petition as presented in a very detailed manner, the preliminary objection raised and submissions. I have already done the case analysis and therefore what remains is to identify the issues for determination and that issue is whether the petition is res judicata and if not, whether the orders sought should be granted. 2. On whether petition is res-judicata Misc. Cr. Application No. E003/2023 as contended by the respondents, it is important to note that the respondents did not place before this court the pleadings and the decision or ruling in Misc. Cr E 003/2023 for this court to appreciate those pleadings and the decision. Secondly, none of the parties placed before this court any decision to show that what the court in Review application No. E003/2023 considered is the merits of the application before dismissing it. 3. however, the petitioner at paragraph 5 of his petition asserts that in dismissing that application for sentence review, the court did not look at the substance to note and find that the documents reveal violation, denial, infringement and threats to rights and fundamental freedoms that needed redress to protect the constitution from contravention , further propagating injustices and constitutional violations. 4. According to the petitioner, he has a right to benefit from the law under Section 333 (2) of the Criminal Procedure Code and to the full benefit of remission under section 46 of the Prisons Act as required, by law, considering the period already served, right from the date of arrest. 5. the question is whether in the application for resentencing, the court was asked to address Section 333(2) of the Criminal Procedure Code but that it declined to do so. 6. Each day as it passes prisoners behind bars learn better skills of self-representation through paralegal training and so, they become innovative for self-preservation and hence, the many applications and petitions flooding the courts. 7. What the petitioner is seeking is that as at the time that he was resentenced in the robbery with violence case, he had already served nearly 9 months in remand and 19 years serving death penalty therefore, he expected the court to find that after all, he had already served the 20 years imprisonment hence, he should be set at liberty. This argument is not an idle one. It makes lots of sense, especially if the Muruatetu I case was applied. 8. If the 20 years was to commence from date of sentencing, then adding the 9 months period he spent in remand pending trial, the petitioner would be right, that by now, he would have already served those 20 years imprisonment and therefore he should be set free. 9. That said, I have searched from kenyalaw.org and traced **Misc Criminal Revision No. E003/2023** at Thika High Court before F N Muchemi J. In her ruling dated 9/9/2025, the learned judge in her opening statement states that *“****1. This undated application was filed on 17/11/2022 whereas the applicant seeks for orders of review of sentence under Section 333 (2) of the Criminal Procedure Code.”*** 1. The learned Judge then provided the history of the matter from the CMs court to the resentencing by the same CMs court in Cr. Misc. Appl 118/2019 wherein the petitioner was resentenced to serve 20 years in prison. In that revision application before Thika High Court, the petitioner specifically sought to have the period he spent in remand custody to be considered in resentencing him to 20 years. 2. In opposition, the respondent contended that the High Court was ***functus officio*** and could not sit on appeal of a decision made by a court of similar jurisdiction or a court of higher jurisdiction. 3. The learned judge struck out the application for its incompetence stating that the applicant having appealed to the High Court up to the Court of Appeal, he could not apply a reverse gear to return to the High Court for non-existent remedies, which in actual fact, was absurd. She emphasized that ligation must come to an end otherwise` parties would file suit after suit and application after application for non-existent remedies. 4. I observe that the learned judge rightly found that ligation must come to an end and that the remedy sought was nonexistent then she struck out the application. 5. This court, from the onset, does not exercise supervisory jurisdiction over superior courts. For a plea of res judicata to succeed, there must be a merit decision on what was before the court. 6. Section 333(2) of the Criminal Procedure Code stipulates that: ***“Subject to the provisions of section 38 of the Penal Code (Cap. 63) every sentence shall be deemed to commence from, and to include the whole of the day of, the date on which it was pronounced, except where otherwise provided in this Code.*** ***Provided that where the person sentenced under subsection (1) has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody”*** 1. In the sentencing policy guidelines at clause 4.8 page 53 – 54, which provides for resentencing hearings and the imperatives for resentencing, it is stated as follows- ***4.8.1 – the phenomenon of resentencing hearings and the procedure of resentencing originate from the Supreme Court decision in Muruatetu I & II cases. The import of the decisions is that all offenders convicted of murder who have been subject to the mandatory death penalty and desire to be heard on sentence are entitled to re-sentencing hearing for consideration of mitigations.*** ***4.8.2 – in this circumstance, the resentencing court is clothed with the power to review a sentence by factoring in the weight of the offender’s mitigation in calculating a definitive term of imprisonment.*** 1. As already noted, robbery with violence convicts who were handed mandatory death sentence including the petitioner herein benefited from Muruatetu decision by mistake. In other words, the petitioner was not eligible to benefit from that decision. But since he already benefited from that decision, through misinterpretation of the Muruatetu I as stated by the Supreme Court in Muruatetu II, in my humble review, two wrongs cannot make one right. This court cannot sanitize the illegality that already took place and from which he benefitted by default, to order that the petitioner was entitled to the credit of the period he had served prison term on death row. 2. In my view, that kind of order would be to misinterpret Section 333(2) of the Criminal Procedure Code which only applies to cases where a convict is sentenced to a lawful term period and he was in remand custody (not serving lawful sentence after conviction) as was the petitioner herein. This is what Odunga J (as he then was) in the case of **Jona & 87 others v Kenya Prison Service & 2 others (Petition 15 of 2020) [2021] KEHC 457 (KLR) (18 January 2021) (Judgment)** spoke to when he stated that: ***“A holistic consideration of the above provisions clearly show that this court has the power to redress of a denial, violation or infringement of, or threat to, aright or fundamental freedom in the Bill of Rights and one such violation is the denial or threat of denial of freedom without a just cause such as where the sentence that a person risks serving is in excess of the sentence lawfully prescribed one by failing to comply with section 333(2) of the Criminal Procedure Code. The court is therefore empowered to do so in the exercise of its supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, as long as that person, body or authority is not a superior court. Therefore, a person who is faced with such a situation may well invoke the revisionary powers of the High Court pursuant to section 362 of the Criminal Procedure Code. In my view, an appeal is not necessary in those circumstances.*** 1. I agree with the revered Judge and add that the petitioner herein is not serving sentence on account of failure to invoke section 333(2) of the Criminal Procedure Code. In the aforesaid Jonah case, the Court was clear that the period spent in custody by an accused person should be taken into account during the imposition of sentences, save for the sentence of death. The petitioner, however, is a death row convict who was wrongly resentenced to serve a term sentence, which he was not entitled to as a matter of right or even discretion. He therefore cannot claim that he is serving an excessive prison term inclusive of the 9 months that he spent in custody prior to his being convicted or that the period he served on death row prior to being resentenced be counted and credited to his new sentence so that he is considered to have already served his prison term. 2. If the petitioner was aggrieved by the sentence that he benefitted from by mistake, he had an opportunity to appeal and not to claim that his rights were violated by non-application of section 333(2) of the Criminal Procedure Code. 3. The Sentencing Guidelines further state that: ***“Additionally, although the resolute move towards reviewing all mandatory minimum and mandatory sentences to promote judicial discretion and strengthen the right to a fair trial the following guidelines are aimed at providing guidance to Judicial Officers and Judges when faced with a resentencing application:*** ***Situation analysis policy directions*** ***Who can apply for resentencing*** ***D: Right to appeal a resentencing decision.*** ***4:8:26- Every offender shall have the right to appeal a resentencing ruling to a higher court. There shall only be one right of appeal to a resentencing ruling. This is in view of the fact that in offences other than murder, appeals to the court of appeal are only on matters of land.*** ***Where there has been a revision of sentence, one cannot apply for resentencing.”*** 1. I reiterate that in the instant case, the petitioner benefitted from the **Muruatetu I** decision by mistake because he was not a murder convict and therefore, the petitioner having been lawfully convicted and sentenced to suffer death, the sentencing court could not give credit to the 9 months held in remand. 2. The 9 months credit would only apply where the sentence imposed by the trial court was a term sentence and that since in this case, as the petitioner was wrongly resentenced, this court cannot sanction the defective sentence with an order sanitizing it. No two wrongs can make one right, especially where death sentence remains lawful as stated by the Supreme Court in the **Muruatetu** case. 3. It is not lost to this court that the petitioner was an armed robber with A.K 47 when he committed the violent robbery and as at now, he is not even eligible for prison decongestion exercise. 4. For the above reason, I find that the petition does not disclose any violation of the petitioner’s rights guaranteed under the Bill of Rights. The petition is found to be lacking in merit and the same is hereby dismissed with no orders as to costs. 5. This file is closed. **Dated, Signed and Delivered virtually at Nairobi this 15th Day of June 2026** **R.E ABURILI** **JUDGE**