https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9623

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **MILIMANI LAW COURTS** **CONSTITUTIONAL AND HUMAN RIGHTS DIVISION** **PETITION NO. E014 OF 2024** **SILAS NDUNGU WAIHENYA……………………………….PETITIONER** **VERSUS** **DIRECTOR OF PUBLIC PROSECUTIONS…………..1ST RESPONDENT** **ATTORNEY GENERAL………………………………...2ND RESPONDENT** **JUDGMENT** 1. The facts of this petition are fairly simple. the petitioner, Silas Ndungu Waihenya was charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code. He was tried and found guilty and sentenced to death on 28th March, 2008. This was vide Nairobi High Court Criminal Case No. 79 of 2008. The trial was conducted before Ombijah J, (as he then was). 2. The petitioner was aggrieved by the conviction and the death sentence impose don him. He filed an appeal to the Court of Appeal vide Criminal Appeal Nos. 35 and 37 of 2008. After hearing the appeal, the Superior Court, comprising Maraga, Mwilu & Ouko JJA (as they all were then) rendered the judgment on 4th March, 2014, dismissing the appeal against conviction and sentence and upholding the decision of the High Court. 3. Vide an application filed at Milimani High Court Criminal Appeal No. E278 of 2018, the petitioner herein sought for review of the sentence which was upheld by the Court of Appeal on 4/3/2014, based on the decision of the Supreme Court in **Francis Karioko Muruatetu and another v Republic [2017] e KLR.** which declared mandatory death sentence unconstitutional, giving reasons for that declaration, while acknowledging that death sentence was lawful sentence and that trial courts cous still impose it on a convicted offender, having regard to the circumstances of each case. 4. JM Bwonwonga J (as he then was) found that the Court having convicted the petitioner herein and the petitioner’s appeal to the Court of Appeal having been heard on merit and dismissed, the High Court had no jurisdiction to hear and determine an application for sentence review and that the Court was ***functus officio***. 5. The petitioner is back now in the Constitutional and Human Rights Division of the High Court, seeking for review of orders in respect of resentencing claiming that death sentence and life imprisonment have since been declared unconstitutional by the Supreme Court in **Francis Muruatetu v Republic**, **Kaberia Kahiga and 11 others v Ag [2016] eKLR** where the Court is said to have held that mitigations in sentencing was taken to be part of the trial. He claims that in recent decisions, courts have quashed life imprisonment and substituted it with thirty years imprisonment as was held in **Evans Nayamari Ayako Criminal Appeal 22 of 2018** at Kisumu, considering the aggravating circumstances. 6. The petitioner claims that this Court has jurisdiction to review sentence under Article 50(1) of the Constitution, through application of section 329 of the Criminal Procedure Code to impose appropriate sentence in order to advance equality envisaged under Article 27 of the Constitution. 7. The petitioner avers that this court has jurisdiction under Articles 20 and 165 of the Constitution to hear this petition and grant orders as per Article 23 of the Constitution. 8. The petitioners urges that this Court should consider the time he has served in prison hence he should benefit from resentencing.in line with recent decisions following the Muruatetu decision. **Response to the Petition** 1. The 1st Respondent filed a replying affidavit sworn on 18th February, 2025 by Job Mulati Prosecution Counsel while the 2nd respondent filed a preliminary objection dated 21st June 2024. 2. According to the 1st respondent, the petitioner’s appeal having been dismissed by the Court of Appeal, this Court is functus officio and that this court cannot entertain the prayer for resentencing in view of the decision in Criminal Miscellaneous application No. E278 of 2018 which dismissed his application for resentencing hence this court is said to be devoid of jurisdiction to entertain this petition. 3. It is deposed that death sentence is lawful under sections 24 and 25 of the Penal Code and that the petitioner has not demonstrated that the respondents have violated his constitutional rights. that this court cannot supervise a court of concurrent jurisdiction hence the petition should be dismissed. 4. In the grounds of objection, the 2nd respondent reiterates the depositions by the 1st respondent, urging this Court to dismiss the petition. **Submissions** 1. The petitioner filed submissions dated 24th May 2024 and replying submissions dated 19th January 2026 in support of his petition while the 2nd respondent’s submissions are dated 29th October, 2024. 2. In his submissions, he reiterates that the petition is on resentencing and that this court has jurisdiction to reconcile the denied rights to equal protection and benefit of the law. he cites various decisions on interpretation of the Constitution and jurisdiction of the High Court and urges this court to review the death sentence upheld by the Court of Appeal and declare it unconstitutional and to declare the decision by Bwonon’ga J in Cr Misc Appl E278 of 2018 to be null and void because the judge did not resentence the petitioner as prayed. 3. The petitioner urges this court to take evidence and sufficiently inform itself of the appropriate sentence to impose, substituting life imprisonment to 30 years imprisonment. 4. In the replying submissions, the petitioner emphases that this court has jurisdiction to entertain his petition and resentence him and to find that his constitutional rights were violated when he was sentenced to death and the Court of Appeal upheld that sentence. That the petition does not seek to have this court act as an appellate court but to resentence him. 5. The 2nd respondent’s submissions dated 29th October 2024 reiterating its grounds of opposition and adding that the case of **Kaiberia** is not relevant because it concerned attempted robbery and that the petitioner’s death sentence had already been commuted to life imprisonment. I need not reproduce the submissions here which are similar to the grounds of opposition as summarized above. **Analysis and determination** 1. I have considered the petition by the convict herein Silas Ndungu Waihenya, his grounds, affidavits and submissions. I have given equal consideration to the responses and submissions filed by the two respondents and the issue for determination is whether the petition is merited. 2. It is not in doubt that from the pleaded facts, that the petitioner was convicted and sentenced to death for the offence of murder. The petitioner appealed to the Court of Appeal vide Criminal Appeal No. 37 of 2008 which appeal on conviction and sentence was dismissed. The petitioner having exhausted his right of appeal, he approached the trial court vide Miscellaneous Criminal Application No. E278 of 2022 seeking for resentencing in line with the Supreme Court decision in **Francis Karioko Muruatetu and another v Republic [2017] e KLR** in which the apex court held that mandatory death sentence was unconstitutional in so far as it denied the convict an opportunity to mitigate and also denied the trial court the exercise of judicial discretion in sentencing having regard to the circumstances of each case. 3. It is true that the petitioner was sentenced prior to the **Muruatetu** case. However, having approached the Court post Muruatetu and sought for resentencing, and the trial Court having declined to resentence him, the petitioner cannot approach this court seeking a review of the decision of the trial court. From his own pleadings and submission, the death penalty was commuted to life imprisonment. 4. The petitioner already pleaded the ***Muruatetu*** case in similar proceedings and therefore this Court is barred from revisiting decisions of courts of concurrent jurisdiction in the name of exercise of jurisdiction to hear constitutional violations. 5. More importantly, this Court does not find any constitutional violation in the decision of the trial court that declined to resentence the petitioner and the court having made a finding on revisiting sentence that had been upheld by the Court of Appeal, which sentence was later commuted to life imprisonment, this court does not find any merit in the plea that it reviews the death sentence and substitute it with 30 years imprisonment, noting, that the petitioner is not even on death row as originally sentenced. 6. In my view, the petitioner wants to have a second bite at the cherry by asking this court to sit on appeal of the decision of another judge of concurrent jurisdiction. This court is devoid of such jurisdiction to declare, as it has been asked to do, that the decision of Bwonong’a J in **Cr Misc Appl E278 of 2018 is** null and void. 7. Furthermore, the decision relied on in the **Ayako** case, where the Court of Appeal reduced life imprisonment to thirty years imprisonment, the Supreme Court overturned that decision. The Supreme Court of Kenya (**Republic v. Evans Nyamari Ayako, SC Petition E002 of 2024)** overturned the decision and firmly held that an indeterminate life sentence is constitutional. The apex Court held that life imprisonment means exactly what the statute prescribes and courts cannot arbitrarily convert it to a fixed term of years. That said, the petitioner herein was not sentenced to serve life imprisonment but death sentence which was commuted by the president. 8. In the end, I find the petition dated 9th January, 2024 to be devoid of merit and the same is hereby dismissed with no orders as to costs. 9. This file is closed. **Dated, Signed and Delivered at Nairobi this 1st Day of July, 2026** **R.E. ABURILI** **JUDGE**