https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9728

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **MILIMANI LAW COURTS** **CONSTITUTIONAL AND HUMAN RIGHTS DIVISION** **CONSTITUTIONAL PETITION NO. E710 OF 2025** **IN THE MATTER OF ARICLES 2 (1), (6), 3(1), 10(2) (b), 19, 22 (1) , 25 (a), 27 (1), (2), (4), 28, 29 (a), (d), and (f), 50, 159 (2) (a), 165 (3), (b) and (d) OF THE CONSTITUTION.** **AND** **IN THE MATTER OF SECTION 216 AND 326 OF THE CRIMINAL PROCEDURE CODE, CAP 75 LAWS OF KENYA** **AND** **IN THE MATTER OF SECTION 296 (2) OF THE PENAL CODE, CVAP 63, LAWS OF KENYA** **AND** **IN THE MATTER OF THE UPDATED SENTENCING POLICY GUIDELINES, 2023** **AND** **IN THE MATTER OF PETITION NO. 15 AND 16 OF 2016, FRANCIS KARIORKOR MURUATETU 2** **-BETWEEN-** **CHRISTOPHER MULU UVII ………………………………\ PETITIONER** **-VERSUS-** **THE REPUBLIC ………………………………………... 1ST RESPONDENT** **THE ATTORNEY GENERAL ……………...………… 2ND RESPONDENT** **JUDGMENT** 1. This Judgment determines the Petition dated 27th October 2025 and is brought under ***Article 22 (1) of the Constitution and Rule 4 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013***. 2. The Petitioner was convicted of the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code and sentenced to suffer death penalty by the High Court, trial court, which sentence was commuted to life imprisonment by the president. The Petitioner seeks the following reliefs: 3. ***This Hon. Court be pleased to issue a declaration that indeterminate sentence of life imprisonment is unconstitutional in so far as it violates Article 28 and 29 (d) of the Constitution by failing to give regard to not only his dignity as human beings but also failing to prevent their subjection to inhuman and degrading treatment.*** 4. ***This Court be pleased to issue a declaration that indeterminate sentence of life imprisonment is unconstitutional in so far as they violate the inherent right to a fair trial as envisaged under Article 50 of the Constitution.*** 5. ***This Court be pleased to issue a declaration that indeterminate sentences of life imprisonment is unconstitutional in so far as they violate Article 2 (5) and (6) of the Constitution through their non-compliance with international laws and instruments, in which Kenya is a party through its ratification.*** 6. ***This Court be pleased to issue a declaration that indeterminate sentences of life imprisonment is unconstitutional in so far as they violate the objectives of sentencing as stipulated under the Judiciary Sentencing Guidelines 2023.*** 7. ***This Court be pleased to issue a declaration that indeterminate sentences of life imprisonment are unconstitutional as they violate Article 27 of the Constitution owing to lack of legislation catering for remission and/or parole.*** 8. ***This Court put into account that the Petitioner is an old man and is eligible for his sentence to be reviewed as was ordered in the case of MAKUMBI SUBUI MANYESO CRIMINAL APPEAL NO. 110 OF 2022 AT MOMBASA.*** 9. ***That the Petitioner has undergone enough rehabilitation and deserves to be given a chance back to the society as he has learnt his lesson the hard way.*** 10. ***This Court be pleased to review the Sentences accorded to the Petitioner herein putting into account that he is 72 heats old and has served 20 years since the date he was arrested and order that the sentence he has served is enough punishment and order that he be released from custody and be reintegrated by his family.*** 11. ***The Court be pleased to make further such other order(s) as it shall deem just.*** 12. The Petition is supported by the Petitioner’s sworn affidavit which is dated evenly and the grounds adduced on the face of it. He avers that he was arrested in 2005, tried and convicted of murder under Sections 203 and 204 of the Penal Code then sentenced to death on 9th December 2015, by Lady Justice Jessie Lesiit. That his subsequent appeal in Nairobi Criminal Appeal No. 37 of 2018 was dismissed, but his death sentence was commuted to life imprisonment by former President Uhuru Kenyatta in 2016. He also lodged an Application before the High Court at Milimani Criminal Division in HCCR MISC APP. No. E235 of 2024 seeking a resentencing, which application was dismissed on 25th November 2024. 13. It is his case that he has been in custody for 20 years. At 72 years old, he states that he is sickly, suffering from eye and ear problems, back and knee pain, high blood pressure and ulcers. He cites the case of ***Rodgers Ouma v Republic (2021) eKLR*** where the High court at Garsen held that imposing lengthy sentences amounts to over-incarceration of the offender. 14. He contends that indeterminate life sentences constitute cruel, inhuman, and degrading punishment, violating the right to human dignity under ***Article 28*** and freedom and security of person under ***Article 29***. He states that unlike inmates serving determinate or fixed-term sentences, those serving life sentences are unfairly excluded from parole and remission benefits under the Prisons Act. 15. The Petitioner contends that keeping an individual incarcerated for life without the possibility of review undermines the ultimate penological goal of sentence reform and social re-adaptation. He asserts that under ***Article 57***, older members of society have a right to receive reasonable care. 16. The Petitioner cites the Court of Appeal decision in ***Makumbi Subui Manyeso Criminal Appeal No. 110 of 2022 at Mombasa*** which ordered the Attorney General to look into mechanisms for reviewing sentences of inmates over the age of 70 and asserts that his Petition seeks orders from the Court to allow him to file a resentencing Application as other prisoners in order to adhere to ***Article 27 of the Constitution***. 17. It is deposed that the life sentence imposed on him violates the international frameworks ratified by Kenya, such as the ICCPR and the UN Mandela Rules, which command that prisoners be treated with humanity and dignity. He adds that imposition of the life sentence is devoid of judicial input and is contrary to his right to a fair trial under ***Article 50 of the Constitution***. **Response to the petition** 1. In response to the Petition, the 1st Respondent filed Grounds of Opposition dated 9th April 2026 through Prosecution Counsel Abdallah Lyaga on the basis that the Petition is fatally defective and is an abuse of court process because it attempts to reopen sentencing matters already conclusively decided by both the trial court and the Court of Appeal. 2. Counsel deposes that the High Court lacks the jurisdiction to review or change a sentence affirmed by a higher court being the Court of Appeal, and states that constitutional petitions cannot be used as a backdoor substitute for appellate re-litigation. 3. It is contended that the Petitioner has not provided cogent material or proved exceptional progress, reform, or rehabilitation to warrant an interference with his sentence under the Sentencing Policy Guidelines 2023. 4. It is deposed that the Petitioner’s reliance on constitutional protections for vulnerable or older persons is misplaced since he did not fall into that category when he was originally convicted and sentenced. That in any case, all mitigating factors were already weighed at the time of sentencing. 5. It is further deposed that a lawful custodial sentence for a serious crime like murder is a valid and legally justified limitation of rights under the Constitution. It does not constitute torture, or cruel, inhuman and degrading treatment. Counsel also asserts that lawful imprisonment does not equate to a loss of dignity and that the Petitioner’s own annexed medical documents prove he is receiving proper medical attention and is progressing well. 6. The 1st Respondent states that defining or legislating the meaning of life imprisonment is strictly a legislative function and courts must not engage in judicial legislation or encroach upon the legislative function as affirmed by the Supreme Court. 7. Further, that excluding life-sentence inmates from parole or sentence remission is legally justified, grounded in statutory provisions and public policy considerations and further, reflects a lawful differentiation based entirely on the extreme gravity of the offence committed. It is averred that Article 7 of the International Covenant on Civil and Political Rights does not prohibit lawful custodial sentences imposed by competent courts and the Petitioner has not demonstrated any treatment that meets the threshold of torture or inhumane punishment. 8. It is urged that the Petition be dismissed with costs as it is devoid of merit, legally untenable and is an abuse of the court process because it seeks to challenge a lawful sentence without meeting the constitutional and jurisprudential thresholds of such interventions. 9. **The 2nd Respondent** filed a **Notice of Preliminary Objection** **dated 28th April 2026** raising five grounds namely: 10. ***THAT the Petition offends the doctrine of res judicata in that, the issues raised herein have been heard and conclusively determined by Courts of competent jurisdiction at three levels, namely; the trial Court at first instance in H.C.CR No. 82 of 2005, the Court of Appeal on first appeal in Uvii v Republic (Criminal Appeal 37 of 2018) [2022] KECA 1418 (KLR) which dismissed the Petitioner’s appeal, and most recently the High Court in Uvii v Republic (Miscellaneous Application E235 of 2024) [2024] KEHC 16476 (KLR) (Crim) (25 November 2024) (Ruling) wherein Hon. Justice A.M. Muteti expressly held that the Court lacks jurisdiction to review the decision of the Court of Appeal in Criminal Appeal No. 37 of 2018 and consequently struck out the Petitioner’s application. The Petitioner now seeks to ventilate the very same issues before this Honourable Court by way of a constitutional petition, which amounts to an impermissible collateral attack on those final determinations and is therefore bad in law.*** 11. ***THAT the Petition, as framed and if determined as such will go against good order and cause dissonance of decisions emanating from this Honourable Court.*** 12. ***THAT this Honourable Court lacks jurisdiction to reopen and entertain or interrogate matters that have been heard and determined with finality by the Court of Appeal as doing so would offend the doctrine of finality of litigation and the hierarchical structure of courts.*** 13. ***THAT the Petition does not meet the threshold for a constitutional petition as established in Anarita Karimi Njeru v. Republic [1979] eKLR and affirmed in Mumo Matemu v. Trusted Society of Human Rights Alliance & 5 Others [2013] eKLR in that, the Petitioner has failed to set out with precision and clarity the specific provisions of the Constitution that have been violated or are threatened, the manner in which such provisions have been violated and the remedy sought in relation to each alleged violation.*** 14. ***THAT this Honourable Court should therefore dismiss the current matter as it does not raise any novel issues for determination.*** **Submissions** 1. Parties filed written submissions to canvass the petition.The Petitioner’s submissions are dated 9th February 2026. The Petitioner submits that the Court’s mandate and jurisdiction to hear his Petitioner are premised on the Supreme Court Order that all murder convicts are at liberty to petition their respective trial courts for resentencing. He submits that this directive changed previous mandatory sentencing jurisprudence where judges’ hands were legally tied. 2. The Petitioner submits that part 4.8.14 of the updated Sentencing Guidelines explicitly empowers the High Court to grant resentencing opportunities to murder convicts. The Petitioner invokes ***Section 333(2) of the Criminal Procedure Code,*** asking the Court to properly factor in his overall period of incarceration. 3. Citing the High Court decision in ***Michael Kalewa v Republic*** and paragraph 71 of ***Muruatetu 1***, the Petitioner argues that sentencing must be individualized by weighing specific mitigating factors such as if the Accused is a first-time offender, has demonstrated remorse, has the right to serve the least severe sentence and is advanced in age and medical vulnerability. 4. The Petitioner states that he had no prior criminal record. He cites ***R v Otieno (1983)*** and ***R v Arrisol (1957****)*, arguing that a maximum sentence should not be imposed on a first offender and departing from this principle is legally erroneous. He also expresses profound regret for his actions and anger control failures, noting that an offense may define someone at the time of the crime, but circumstances and individuals change over time. 5. He further submits that under **Article 50 (2) (p) of the Constitution**, an applicant has a right to benefit from the least severe of the prescribed punishments if the law has shifted between the time of the offense and the time of sentencing. The petitioner relie on the Court of Appeal decision in ***Makumbi Subui Manyeso (Criminal Appeal No. 110 of 2022)***, which directed the Attorney General to look into mechanisms for reviewing sentences of inmates over the age of 70. 6. It is his submission that at 72 years old and having served 21 years in prison, he has suffered significant chronic medical conditions including high blood pressure, ulcers, and back/knee pain which are compelling grounds for leniency. He also cites paragraph 4.1 of the Sentencing Guidelines and states that the primary objective of a custodial sentence is reformation and rehabilitation. 7. The Petitioner argues that he has turned over a new leaf, proving his rehabilitation through good prison conduct and by obtaining eight separate credentials while incarcerated, including a Grade III in Tailoring, a Diploma in Theological Education, and multiple certificates in leadership, behavioral training and drug abuse prevention. 8. The Petitioner relies on international and domestic decisions to argue that his 21 years served should be deemed sufficient punishment. Relying on the South African cases of ***State v Warren Vorster CC No. 125/2009*** and ***Dodo v S 2001 (3) SA 381 (CC****)*, he argues that sentences must fairly balance the interests of society, the accused, and the gravity of the offense without being over-harsh. 9. The case of ***Samson Njuguna Njoroge v Republic H.C.CR Appl No. 150 of 2016 (UR)***, is cited where the High Court substituted a mandatory death sentence and deemed 6 years in custody as sufficient punishment, ***Benjamin Kahindi Changawa (2020) eKLR*,** where the Court of Appeal substituted a death sentence with 10 years for murder and finally, in ***Kimotho v Republic Misc. Criminal App. No. E269 of 2024 (2025) KEHC 1191 (KLR****)*, where a death sentence was substituted with 23 years from the date of arraignment. He urges the Court to allow the Petition and, in the alternative, if the Court determines a higher sentence is necessary, he requests to be placed on a non-custodial sentence for the remainder of the term. 10. The 1st Respondent’s submissions are dated 13th April 2026. Learned Prosecution Counsel Abdalla Lyaga submitted on the following issues: 1. ***Whether this Honourable Court has jurisdiction to entertain the Petition;*** 2. ***Whether the Petition offends the doctrine of finality and functus officio; Whether the Petitioner has met the threshold for resentencing under the Sentencing Policy Guidelines, 2023;*** 3. ***Whether the sentence of life imprisonment violates the Petitioner’s constitutional rights as alleged; and*** 4. ***Whether the Petitioner has established grounds warranting the grant of the orders sought.*** 11. On the first issue, Counsel submitted that the High Court lacks the jurisdiction to review or alter a sentence that was lawfully issued by a trial court and subsequently upheld by the Court of Appeal. That accordingly, a constitutional petition cannot be used as a substitute for an appellate review and the Court must down its tools as determined in the case of ***Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd*** 12. Counsel submits that a court’s jurisdiction flows from the Constitution or Statute as held by the Supreme Court in ***Samuel Kamau Macharia & Another v Kenya Commercial Bank & 2 Others [2012] eKLR***, and submits that the Court must guard against reopening concluded matters based on the principle of finality of litigation as held by the Supreme Court in ***Benjoh Amalgamated Limited & Another v Kenya Commercial Bank Limited [2014] eKLR.*** 13. On the second issue, Counsel submits that the Petition offends the **doctrine of finality** and **functus officio**. Because the conviction and sentence were already conclusively determined through the proper judicial hierarchy, Counsel contends that they cannot be reopened. The Court of Appeal’s decision in ***William Koross v Hezekiah Kiptoo Komen & 4 Others [2015] eKLR*** is cited support of the finality of litigation. 14. On the fourth issue, it is submitted that under the **Sentencing Policy Guidelines (2023)**, the Petitioner failed to provide any material evidence of rehabilitation, reform, or remorse. Furthermore, the guidelines dictate that resentencing must be handled by the last court that sentenced the convict; since the Court of Appeal last heard this case, the High Court is the wrong forum. 15. On the last issue, Counsel submits that lawful life imprisonment via due process does not violate the right to life or dignity; that the prohibition against torture or degrading treatment under **Article 29** and **Article 7** of the **International Covenant on Civil and Political Rights** does not apply to lawful sentences and the Petitioner’s medical records show he is receiving proper medical attention. Counsel adds that excluding life-sentence inmates from parole or remission is justified by public policy based on the gravity of their offenses and does not amount to discrimination. 16. Counsel representing the 1st Respondent opposes the prayer for the Court to redefine life imprisonment, asserting that defining such terms falls strictly within the legislative mandate of Parliament, not the Judiciary. 17. **The Petitioner filed further submissions in** rebuttal dated 12th May 2026 in which he cites the Supreme Court’s landmark decision in Muruatetu 2 and the Guidelines, where he submits that the Court directed that all convicts facing mandatory sentences are explicitly granted liberty to Petition their trial courts for resentencing reliefs. He submits that under ***Article 50 (2) (p) of the Constitution***, he is entitled to the least severe punishment. 18. That he has provided rehabilitation certificates proving demonstrable reform, and further states that he has shown immense remorse for the loss of life and also cited compelling medical illnesses while incarcerated. The Petitioner states that the time served is sufficient arguing that he has been imprisoned for 21 years since 2005 and is a completely transformed person compared to who he was when convicted. He reiterates his eligibility for sentence review under the Court of Appeal precedent in ***Makumbi Subui Manyeso***, which mandates that the Attorney General provide avenues of sentence review for inmates aged 70 years and older. **Analysis and Determination** 1. From the pleadings and the rival submissions, I note that the 2nd respondent has raise a Notice of Preliminary Objection challenging, ***inter alia*** the jurisdiction of the court. I will therefore determine the preliminary objection first before delving into the question of whether the petition is merited. 2. The law on preliminary objections is now well established in the locus classicus **Mukisa Biscuit Manufacturing Co. Ltd. v. West End Distributors Ltd [1969] E.A. 696,** where the Court of Appeal aptly elucidated what constitutes a preliminary objection. Per Law, JA at p.700, thus: ***“I agree that the application for the suit to be dismissed for want of prosecution should have taken the form of a motion, and not that of a ‘preliminary objection’ which it was not. So far as I am aware, a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the Court, or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.”*** Per Newbold, P it was stated at p.701 thus: - ***“The first matter relates to the increasing practice of raising points, which should be argued in the normal manner, quite improperly by way of preliminary objection. A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. The improper raising of points by way of preliminary objection does nothing but unnecessarily increase costs and, on occasion, confuse the issues. This improper practice should stop.”*** 1. A preliminary objection raises purely a crisp point of law where facts are undisputed. This Petition challenges the constitutionality of indeterminate life sentences which constitutes the sentence that the Petitioner is currently serving at Kamiti Maximum Prison after the death penalty imposed on him was commuted by the President. I note that originally a death sentence imposed by the trial was upheld on appeal but later commuted to life sentence by Presidential decree. 2. In their Notice of Preliminary Objection, the 2nd respondent raised points of law raised to the effect that the Petition offends the doctrine of Res Judicata, the jurisdiction of the Court is challenged and that the Petition does not meet the threshold of constitutional petitions as prescribed by the case of ***Anarita Karimi Njeru*** and reaffirmed in ***Mumo Matemu*** case. 3. The doctrine of Res Judicata is predicated upon **Section 7 of the Civil Procedure Act** which provides: - ***7. No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.*** 1. The purpose of the doctrine of *res judicata* and its elements were aptly explained by the Supreme Court in **Communications Commission of Kenya & 5 others vs. Royal Media Services Limited & 5 others [2014] eKLR**thus: - ***“[317] The concept of res judicata operates to prevent causes of action, or issues from being re-litigated once they have been determined on the merits. It encompasses limits upon both issues and claims, and the issues that may be raised in subsequent proceedings….*** ***[319] There are conditions to the application of the doctrine of res judicata:*** ***(i) the issue in the first suit must have been decided by a competent Court;*** ***(ii) the matter in dispute in the former suit between the parties must be directly or substantially in dispute between the parties in the suit where the doctrine is pleaded as a bar; and*** ***(iii) the parties in the former suit should be the same parties, or parties under whom they or any of them claim, litigating under the same title.*** ***Karia and Another v. The Attorney General and Others, [2005] 1 EA 83, 89. “*** 1. The Court of Appeal expressed itself on this rule as follows in the case of **Independent Electoral & Boundaries Commission v Maina Kiai & 5 Others (2017) eKLR**: ***“The rule or doctrine of res judicata serves the salutary aim of bringing finality to litigation and affords parties closure and respite from the spectre of being vexed, haunted and hounded by issues and suits that have already been determined by a competent court. It is designed as a pragmatic and common-sensical protection against wastage of time and resources in an endless round of litigation at the behest of intrepid pleaders hoping, by a multiplicity of suits and fora, to obtain at last, outcomes favourable to themselves. Without it, there would be no end to litigation, and the judicial process would be rendered a noisome nuisance and brought to disrepute and calumny. The foundations of res judicata thus rest in the public interest for swift, sure and certain justice.”*** 1. The elements of res judicata listed above must be construed conjunctively rather than disjunctively which means that each of the elements must be present before a suit or an issue is deemed res judicata on account of a former suit (see **Mulla, Procedure Code Act of 1908 16thEdition**.) 2. It is undisputed in this case that the Petitioner herein was charged and convicted of the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code before the High Court in Nairobi, and thereafter, sentenced to death on 9th December, 2015, which was commuted to life imprisonment. It is also not disputed that he did pursue an appeal before the Court of Appeal which was dismissed on 16th December, 2022. He also sought a revision of his sentence before this Court, at the Criminal Division which Application was again dismissed for want of jurisdiction. 3. Without delving deeper into the judgments that were delivered by the respective courts, my determination on this issue is that the Petitioner herein has already been heard on the issue of his sentence on two occasions. The first being originally before the trial court when he was allowed to mitigate before being sentenced and the second being, before the Court of Appeal which was the first appellate court, where the evidence from the trial court was subjected to a fresh scrutiny, including the legality of the sentence. 4. Upon upholding the conviction, the Court of Appeal pronounced itself on sentence by refusing to interfere. In my view, the elements of res judicata have been established since the issue of sentencing has already been subjected to judicial scrutiny and determination by both the High Court and subsequently the Court of Appeal. 5. The Court of Appeal is superior to this Court and in exercising its appellate jurisdiction, considered the propriety and legality of the sentence imposed on the petitioner herein, which was death sentence before it rendered final its decision. Once the appellate court has conclusively pronounced itself, the same issue cannot be reopened before any court of concurrent or subordinate jurisdiction. 6. I further find that the elements of res judicata have been established because the parties before this Court are the same as those who litigated the matter before the High Court and the Court of Appeal; the issue of sentence is the precise subject matter that was canvassed and adjudicated upon in the earlier proceedings; and both the High Court and the Court of Appeal, being courts of competent jurisdiction, rendered final decisions on the matter of sentence. 7. It is also my holding that the Petitioner had the full opportunity to raise all arguments relating to sentence in the earlier proceedings. Therefore, for this Court, albeit exercising jurisdiction under Article 165 (3) (b), to entertain such proceedings, that would amount to sitting on appeal over the decisions of the superior court or its counterpart, which is impermissible. 8. My conclusion is that the petition is res judicata and this Court lacks jurisdiction to hear and determine it. 9. On the second limb of jurisdiction, it is the 2nd Respondent’s contention that this Court does not have power to reopen and entertain matters that have been heard and determined with finality by the Court of Appeal. The issues of finality of litigation and hierarchy of courts is raised. 10. I have considered the principles governing the issue of jurisdiction, which is the authority with which a court of law acts. Paying credence to the oft cited case of **Owners of the Motor Vessel “Lilian S” v Caltex Oil (Kenya) Ltd (1989) KLR 1,** the Court of Appeal stated: ***“Jurisdiction is everything. Without it a court has no power to make one more step. Where a court has no jurisdiction there would be no basis for a confirmation of proceedings pending other evidence. A court of law must down its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction……. where a court takes it upon itself to exercise jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgement is given.”*** 1. The Supreme Court also pronounced itself on this issue and held further in **Samuel Kamau Macharia & Another v Kenya Commercial Bank Ltd & 2 Others [2012] eKLR** as follows: ***“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.”*** 1. The High Court’s jurisdiction is founded on **Article 165** **of the Constitution** which provides as follows: ***(3) Subject to clause (5), the High Court shall have—*** ***(a) unlimited original jurisdiction in criminal and civil matters;*** ***(b) jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened;*** ***(c) jurisdiction to hear an appeal from a decision of a tribunal appointed under this Constitution to consider the removal of a person from office, other than a tribunal appointed under Article 144;*** ***(d) jurisdiction to hear any question respecting the interpretation of this Constitution including the determination of—*** ***(i) the question whether any law is inconsistent with or in contravention of this Constitution;*** ***(ii) the question whether anything said to be done under the authority of this Constitution or of any law is inconsistent with, or in contravention of, this Constitution;*** ***(iii) any matter relating to constitutional powers of State organs in respect of county governments and any matter relating to the constitutional relationship between the levels of government; and*** ***(iv) a question relating to conflict of laws under Article 191; and*** ***(e) any other jurisdiction, original or appellate, conferred on it by legislation.*** ***(4) Any matter certified by the court as raising a substantial question of law under clause (3) (b) or (d) shall be heard by an uneven number of judges, being not less than three, assigned by the Chief Justice.*** ***(5) The High Court shall not have jurisdiction in respect of matters—*** ***(a) reserved for the exclusive jurisdiction of the Supreme Court under this Constitution; or*** ***(b) falling within the jurisdiction of the courts contemplated in Article 162(2).*** 1. It is also indisputable that the Court of Appeal is superior to the High Court and that once the High Court has rendered itself on a matter, in this case a judgment, it becomes functus officio. The concept of a court being *‘functus officio’* was explained in **Jersey Evening Post Limited vs. Al Thani [2002] JLR 542 at 550** thus: - ***“A court is functus when it has performed all its duties in a particular case. The doctrine does not prevent the court from correcting clerical errors nor does it prevent a judicial change of mind even when a decision has been communicated to the parties. Proceedings are only fully concluded, and the court functus, when its judgment or order has been perfected. The purpose of the doctrine is to provide finality. Once proceedings are finally concluded, the court cannot review or alter its decision; any challenge to its ruling on adjudication must be taken to a higher court if that right is available.”*** 1. It follows then that, an appeal from the High Court can only be heard by the next superior court in rank which is the Court of Appeal. The import of this is that, once an appeal from the High Court has been heard and determined by the Court of Appeal, that matter cannot be again heard and determined even if on a separate limb or through a different angle such as a constitutional petition, before the High Court, except in resentencing matters applying the guidelines set out in the **Francis Karioko Muruatetu and another v Republic [2017] eKLR.** To do otherwise would not only offend the doctrine of finality of litigation and undermine the hierarchy of courts but would also mean that the High Court is sitting on appeal over a superior court’s decision which legally untenable. 2. On the issue of whether the matter is a proper constitutional petition, I find guidance provided by the **Anarita Karimi Njeru v Republic (1979) eKLR** case where the court held that: ***“We would, however, again stress that if a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important (if only to ensure that justice is done to his case) that he should set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed, and the manner in which they are alleged to be infringed.”*** 1. The Petitioner’s main grievance is that life sentences are indeterminate and that violates the right to human dignity under Article 28 and freedom and security of person under Article 29. He also asserts that under Article 50 of the Constitution, an accused person is entitled to the least severe sentence possible under the law such that incarceration for a long indefinite period can be deemed to be over-incarceration. In other words, the Petitioner is calling on this Court to declare unconstitutional the life sentences imposed by statutes. 2. Suffice to state that the Petitioner was initially sentenced to death and that sentence was commuted to life imprisonment. The Court did not sentence him to serve life imprisonment. To interfere with the commuted sentence would require a dual challenge, to the provisions of the Penal Code that provide for life imprisonment and also the power given to the President to commute sentences. That petition is not before this Court for a merit determination. Section 204 of the Penal Code prescribes death as the punishment for murder. This is therefore a lawful sentence imposed upon a criminal conduct. This automatically dispenses with the claim that there is an infringement of the right to dignity and humane treatment. 3. The Petitioner has already benefited from the commuting of his sentence from death to a life sentence. He is now seeking a second bite at the cherry by moving this Court through a constitutional petition to issue declarations invalidating the very law that prescribes the punishment for the offence he was convicted of so that he can enjoy a more lenient sentence. The viability of such an approach can only be debunked by relooking into the Supreme Court’s decision in ***Republic v Manyeso (Petition E013 of 2024) [2025] KESC 16 (KLR) (11 April 2025) (Judgment)*** where the apex court held thus: - ***“67. .......The court’s role with regard to the constitutionality of a statute is therefore confined to its interpretation and adjudication.*** ***68. Courts cannot therefore extend their determination to rectifying or amending the statute in question, as this would contravene the doctrine of separation of powers, which delineates the functions of the judiciary, legislature, and executive. Courts must exercise caution when crafting remedies to avoid overstepping their judicial mandate and intruding upon legislative functions by prescribing or enacting amendments. When courts recognize the need for legislative intervention, it is both proper and imperative for them to recommend such measures to the appropriate authorities for adoption. As a court we have invoked this remedy in various instances; in Shah & 7 others v Mombasa Bricks & Tiles Limited & 5 others (Petition 18 (E020) of 2022) [2023] KESC 106 (KLR) we suggested the consideration of reforms over the recourse parties have upon the declaration of trust by the courts and how to actualize the same, especially regarding the aspect of shareholding. In Malcolm Bell v Daniel Toroitich Arap Moi & Board of Governors Moi High School Kabarak (Application 1 of 2013) [2013] KESC 23 (KLR) Hon. Justice Kaplana Rawal, DCJ in her concurring opinion made recommendations to amend section 16 of the Supreme Court Act. In Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] KESC 53 (KLR) we urged CAK to set a timeline for the digital migration. In National Bank of Kenya Limited v Anaj Warehousing Limited (Petition No 36 of 2014) [2015] KESC 4 (KLR) we suggested appropriate legislative action to be taken to address the gaps and inconsistencies apparent in the Advocates Act.*** ***69. We therefore find no difficulty in finding that the Court of Appeal erred in law by substituting the life imprisonment sentence with a 40-year sentence, thereby usurping the legislative power to define sentences.”*** 1. The above decision is clear and needs no further elaboration. But assuming that the Supreme Court had not pronounced itself on this matter, my overall, view of the Petition is that it falls short of the precision requirement laid down in ***Anarita Karimi Njeru v Republic*** case, which obliges a petitioner to clearly articulate the manner in which rights are infringed, the party responsible for such infringement and the specific remedy sought. 2. In this case, none of these elements are pleaded with the requisite clarity. Instead, the Petitioner’s claim is guised as a constitutional claim but is evidently a thinly veiled attempt to reopen the issue of sentence through constitutional litigation. This is in total disregard of the fact that the sentence was imposed by the trial court and affirmed on appeal. His attempts at resentencing did not succeed. To permit such a collateral approach would not only trivialize the constitutional jurisdiction of this Court but also erode the principle of finality in criminal proceedings, and as a consequence, undermine the authority of the appellate process. 3. I find thateven if the Petition were to be entertained, it would still be barred by the doctrines of *res judicata* and functus officio as already discussed. The issue of sentence was fully canvassed and conclusively determined by both the trial court and the appellate court which are courts of competent jurisdiction. 4. As I conclude, it is important to note that life imprisonment, even assuming that it was imposed by the trial Court, is lawful sentence under the Penal Code as was held by the Supreme Court in the**Republic v Ayako (Petition E002 of 2024) [2025] KESC 20 (KLR) (11 April 2025) (Judgment)** case where the Supreme Court overturned the decision of the Court of Appeal that had held that life imprisonment amounted to thirty years in prison. The Supreme Court stated as follows: ***“a. Whether the Court usurped the powers of Parliament by setting a term sentence as a substitute for life imprisonment.*** ***43. Each of the three branches of the Government has its own unique role in ensuring the proper functioning of the State. These roles also complement each other. To achieve this delicate yet essential balance between the Executive, the Legislature and the Judiciary, the Constitution specifically outlines the obligations and mandate of each arm of Government. This division fosters a system of checks and balances, where each branch operates independently yet works collaboratively to uphold constitutional governance, to prevent abuse of power and ensure the rule of law. This balance is vital for maintaining the trust and functionality of a democratic government.*** ***44. Article 94 of the Constitution in particular vests Parliament with the power to make provisions with the force of law. It further provides that other persons or bodies may also do so only under legislative fiat or the Constitution, but this authority has to be express and specific as to the purpose, objectives, limits, nature and scope of the law to be made. In this way, the Constitution is comprehensive with the necessary safeguards that protect the people of Kenya. We would also add that, before a provision has the full effect of the law, it has to go through various stages of the legislative process, principal among them being public participation. The enactment of legislation without going through these necessary safeguards means that the resultant law would lack legitimacy and will be rendered unconstitutional.*** ***45. In the Republic v Mwangi Case, this court held that, whilst sentencing is an exercise of judicial discretion, Parliament sets the parameters for sentencing for each crime in statute. We stated as follows:*** ***“66. We must also reaffirm that, although sentencing is an exercise of judicial discretion, it is Parliament and not the Judiciary that sets the parameters of sentencing for each crime in statute. As such, striking down a sentence provided for in Statute, must be based not only on evidence and sound legal principles but on an in-depth consideration of public interest and the principles of public law that informed the making of that specific law. A judicial decision of that nature cannot be based on private opinions, sentiments, sympathy or benevolence. It ought not to be arbitrary, whimsical or capricious. However, where a sentence is set in Statute, the Legislature has already determined the course, unless it is declared unconstitutional, based on sound principles and clear guidelines, upon which the Legislature should then act. Suffice to say, where Parliament enacts legislation, the Judicial arm should adjudicate disputes based on the provisions of the law. However, in the special circumstances of a declaration of unconstitutionality, the process is reversed”.*** ***46. In Muruatetu I, faced with a similar question of ascribing a term sentence to life imprisonment, this court considered article 51 of the Constitution which provides for the rights of detained persons. Sub article 3 thereof specifically tasks Parliament with enacting legislation for the humane treatment of detainees, persons in remand and convicts. We, therefore, held that while life imprisonment ought not necessarily mean a prisoner’s natural life, it is for the Legislature to prescribe what constitutes life imprisonment and the parameters applicable, if at all. In that connection, we did, as the Supreme Court, recommend that the Attorney General and Parliament ought to commence an enquiry on this issue, and develop legislation on what constitutes a life sentence. Despite making this recommendation on December 14, 2017, and making an order that the Judgment be placed before the Speakers of the National Assembly and the Senate to, among other things, set the parameters of what constitutes life imprisonment, we note this recommendation has not been given consideration by the two offices of Parliament.*** ***47. In view of the foregoing, we find that the Court of Appeal ought not to have proceeded to set a term sentence of thirty (30) years as a substitution for life imprisonment, as the effect would be to create a provision with the force of law while no such jurisdiction is granted to it. The term of thirty years was arrived at arbitrarily without involvement of Parliament and the people. In consequence, we find that the Court of Appeal ventured outside its mandate and powers.*** 1. I have said enough. For all the above reasons, I find that the Notice of Preliminary Objection is merited and the same is sustained. The Petition dated 27th October, 2025 is hereby dismissed with no orders as to costs. 2. This file is closed. 3. Orders accordingly. **Dated, Signed and Delivered virtually at Nairobi this 26th Day of June, 2026** **R.E. ABURILI** **JUDGE**