https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12304

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **MILIMANI LAW COURTS** **CONSTITUTIONAL AND HUMAN RIGHTS DIVISION** **PETITION NO. E007 OF 2025** **IN THE MATTER OF ARTICLE 22 OF THE CONSTITUTION OF KENYA, 2010** **AND** **IN THE MATTER OF ALLEGED CONTRAVENTIONS OF ARTICLES 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), (d) OF THE CONSTITITION** **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 203 AS READ WITH SECTION 204 OF THE PENAL CODE CAP 63, LAWS OF KENYA** **-BETWEEN-** **GEORGE KAMAU WAMBUI …………………………….... PETITIONER** **-AND-** **REPUBLIC ……………………………………………..……. RESPONDENT** **JUDGMENT** **Introduction** 1. The Petitioner herein George Kamau Wambui was charged, tried and convicted of the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code in ***Criminal Case No. 66 of 2012*** at Nairobi and sentenced to death. He then lodged an appeal to the Court of Appeal at Nairobi in ***Criminal Appeal No. 180 of 2016*** against the conviction and death sentence, arguing that the High Court relied on weak circumstantial evidence, shifted the burden of proof onto him and used inadmissible DNA evidence. 2. The Court of Appeal affirmed the conviction and sentence after making a finding that the circumstantial evidence was incredibly strong and pointed irresistibly to the Petitioner’s guilt; they affirmed that requiring an explanation for the blood-stained items under ***Section 111(1) of the Evidence Act*** did not illegally shift the burden of proof and they dismissed his complaint regarding DNA sampling procedures as an afterthought. The Appellate Court dismissed the appeal in its entirety. 3. Later, the Petitioner’s sentence was commuted to life imprisonment by the President and he has been in prison for twelve (12) years. He is now contesting the life sentence on the grounds that it is harsh, indeterminate and violates his constitutional rights. **The Petition** 1. The Petition **dated 3rd January 2025** is premised on ***Articles 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), (d) of the Constitution*** and ***Sections 216 and 326 of the Criminal Procedure Code***. 2. The Petitioner seeks the following reliefs: 3. ***This Honourable Court be pleased to issue a declaration that commuted death sentences to 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 a human being but also subjects him to inhuman and degrading treatment.*** 4. ***This Honourable Court be pleased to issue a declaration that the Petitioner’s right is threatened so far as serving the sentence for the rest of his life in prison without consideration of rehabilitation is disproportionate.*** 5. ***This Honourable Court orders that the Petitioner is fit to serve a term of years considering his mitigation as provided under Section 216 and 329 of the Criminal Procedure Code.*** 6. ***An order in the alternative, for revision of the Petitioner’s case in the interest of justice.*** 7. ***The Court be pleased to make such further orders as it shall deem just.*** 8. The Petition is supported by the Petitioner’s Supporting Affidavit in which he avers that an indeterminate life sentence without consideration for rehabilitation violates the Constitution and international laws, specifically citing the right to dignity and freedom from cruel treatment under ***Articles 28 and 29***, which protect individuals from torture and cruel, inhuman, or degrading treatment or punishment and the right to a fair trial under ***Article 50,*** asserting that imposing an indeterminate sentence devoid of judicial input infringes upon fair trial rights. 9. The Petitioner also cites International Frameworks in particular ***Articles 7*** and ***10 of the International Covenant on Civil and Political Rights (ICCPR)*** and the ***UN Mandela Rules***, which mandate humane treatment of prisoners. **Response to the Petition** 1. In response to the Petition, the Respondent filed a **Replying Affidavit dated 13th October 2025** sworn by Njoki Kihara, Principal Prosecution Counsel at the Office of the Director of Public Prosecutions (ODPP). The Respondent contends that since the High Court’s original conviction was already appealed against and dismissed by the Court of Appeal, this Court is *functus officio* and cannot supervise another superior or higher court. 2. It is averred that pursuant to ***Article 165 (6) of the Constitution***, the Court lacks jurisdiction to hear and determine the Petition since the matter has already been dealt with by the Court of Appeal. 3. It is deposed that the death sentence is lawful under ***Sections 24 and 25 of the Penal Code*** and that the Petition fails the specificity test established in ***Anarita Karimi v. Republic*** and ***Mumo Matemu v Trusted Society of Human Rights Alliance*,** as it does not precisely explain how the state violated the Petitioner’s constitutional rights. The Respondent urges the Court to dismiss the Petition with costs, labelling it an abuse of the court process. **Submissions** 1. Parties took directions to canvass the Petition by way of written submissions. 2. The Petitioner’s submissions are dated **12th March 2025**. He raises the following three issues for determination: 3. ***whether the High Court has jurisdiction under Articles 165(3)(b) & (d) of the Constitution to entertain the petition and alter the petitioner's sentence despite prior appeals***; 4. ***Whether the imposition of a mandatory/life sentence violates fundamental constitutional rights, such as the right to dignity and proportionality in sentencing*** and 5. ***whether the petitioner can be granted the reliefs sought.*** 6. On the issue of jurisdiction, the Petitioner cites the case of ***Owners of Motor Vessel Lillian 'S' vs Caltex Oil Kenya Ltd and Protus Buliba Shikuku v AG Reference No. 3 of 2011 (2012) eKLR*** and argues that the High Court has full authority to determine whether his constitutional rights to fair sentencing have been violated or threatened under ***Article 165 (3) (b) of the Constitution.*** He also cites the case of ***AOO & 6 Others v AG & Another (2017) eKLR*** for the proposition that the High Court must interpret the Constitution where a dispute arises. 7. The Petitioner highlights that he has spent 12 years since 20th October 2013 undergoing rehabilitative programs in prison and deserves a second chance at reintegration into society. That death sentences are inhuman and degrading and are against the right of life under ***Article 26 of the Constitution***. He points the Court to ***Section 216 and 329 of the Criminal Procedure Code*** on the issue of mitigation at sentencing. He also cites the case of ***Arthur Muya Muriukie v Republic (2015) eKLR*** for the argument that sentencing is a matter of discretion by the trial court and argues that although the death sentence is within the statutory framework, it is excessive, inappropriate and fails to adequately consider mitigating circumstances of a case. He also cites ***Edwin Wachira and 9 Others vs Republic, Vinter and Others vs. The UK Application Nos, 66069/09, 130/10 and 3896/10,*** and ***S vs. Jansen 1999 (2) SACR (C) at 373*** in support of these arguments. 8. The Petitioner urges the court to evaluate his case afresh, overturn or reconsider his sentence under current resentencing guidelines and grant him a second chance to re-join his family. 9. **The Respondent’s Submissions** are dated **13th October 2025**. Learned Principal Prosecution Counsel Edna Ntabo argues that the Court lacks jurisdiction because the Petitioner already exhausted his right of appeal when the Court of Appeal dismissed his appeal in Criminal Appeal No. 180 of 2016 on 24th April 2020. Counsel submits that the Court having delivered judgment, it is *functus officio* and cannot quash or alter decisions from a superior court. 10. It is submitted that the Petitioner was lawfully tried and convicted of murder, pursuant to ***Sections 24 and 25 of the Penal Code***, Counsel submits that punishment by death is legal as held by the **Supreme Court in Petition no. E018 of 2023 Re vs. Joshua Gichuki Mwangi** and further emphasizes adherence to the framework set out in the ***Francis Karioko*** ***Muruatetu*** case regarding sentencing challenges. 11. It is submitted that the Petitioner has failed to demonstrate how his constitutional rights were violated. Citing the landmark cases of ***Anarita Karimi Njeru v. Republic*** ***No. 1 (1979) KLR 154 and Mumo Matemu v Trusted Society of Human Rights alliance [2014] eKLR***, the Respondent submits that constitutional petitions require precise framing of the exact rights violated and how they were infringed and asserts that the Petitioner failed to plead his claims with sufficient clarity. 12. Counsel further submits that fundamental constitutional rights are not absolute and must be balanced against public interest and the rights of others. That, accordingly, the Petition is an abuse of the court process due to lack of jurisdiction and failure to demonstrate constitutional violations. The Responded urges that the Court dismisses the Petition with costs to the Respondent. **Analysis and Determination** 1. I have considered the petition, the response thereto and the respective parties’ written submissions. I find the main issue for determination is ***whether the Court has jurisdiction to hear and determine this Petition.*** 2. It is now settled that jurisdiction is everything and without it, a court of law acts in vain. This principle was aptly enunciated in the *locus classicus* ***Owners of Motor Vessel Lilians “s” versus Caltex Oil (K) Ltd*** **[1989] eKLR** where the Court of Appeal stated: ***“6. A question of jurisdiction ought to be raised at the earliest opportunity and the court seized of the latter was then obliged to decide the issue right away on the material before it. Jurisdiction was everything. Without it, a court had no power to make one more step. Where a court had no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downed tools in respect of the matter before it the moment it held the opinion that it was without jurisdiction.*** ***7. A question of jurisdiction once raised by a party or by a court on its own motion must be decided forthwith on the evidence before the court. It was immaterial whether the evidence was scanty or limited. Scanty or limited facts constituted the evidence before the court. A party who failed to question the jurisdiction of a court may not be heard to raise the issue after the matter was heard and determined. There were no grounds as to why a question of jurisdiction could not be raised during the proceedings. As soon as that was done, the court should hear and dispose of that issue without further ado.”*** 1. The above decision was affirmed by the Supreme Court in ***Macharia & another v Kenya Commercial Bank Ltd & 2 others (Application 2 of 2011) [2012] KESC 8 (KLR) (23 October 2012) (Ruling)*** where the apex Court stated as follows regarding jurisdiction: ***“A court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a court of law could only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which was conferred upon it by law. The issue as to whether a court of law had jurisdiction to entertain a matter before it, was not one of mere procedural technicality; it went to the very heart of the matter, for without jurisdiction, the court cannot entertain any proceedings.”*** 1. The High Court’s jurisdiction flows from **Article 165 of the Constitution**. The High Court is equally empowered by **Article 23 of the Constitution** to hear and determine claims of denial, violations, infringements and threats to rights and fundamental freedoms of individuals. In particular, A**rticle 165 (6)** empowers the High Court to supervise subordinate courts and bodies which exercise judicial or quasi-judicial functions. However, this authority does not extend to the supervision of superior courts being the Court of Appeal and Supreme Court. 2. Having set out the foregoing, the Petitioner herein is seeking a declaration that commuting his death sentence to life imprisonment is unconstitutional, arguing that indefinite imprisonment without consideration for rehabilitation violates his dignity and constitutes inhuman/degrading treatment. He prays for a resentencing to a fixed term of years or a revision of his sentence. In his submissions, he challenges the death penalty as being cruel and inhuman. 3. The Respondent contends that this Court has no jurisdiction to review the sentence which was upheld by the Court of Appeal and that death sentence is lawful sentence. Further, that the court is functus officio. 4. It is clear from the pleadings and the background of this case that the Petitioner was charged, tried and convicted by th trial court for the murder of Joyce Muthoni Muriu, which occurred on the night of 12th August 2012, in Ngecha village, Kiambu County. The trial court extensively considered the evidence tendered by the Prosecution and his defense and found him guilty of murder. He was then convicted and sentenced to death. 5. The facts also indicate that the Petitioner filed an appeal before the Court of Appeal in ***George Kamau Wambui v Republic*, Criminal Appeal No. 180 of 2016** which appeal was heard and dismissed with the sentence and conviction being affirmed. His death sentence was thereafter commuted to a life sentence by the President. He now argues that both the death sentence and life imprisonment are unconstitutional for being indeterminate and violating his dignity and right to life. 6. From the above chronology, it is clear to this Court that once the Petitioner exercised his right of appeal and sought redress from the Court of Appeal on the High Court’s decision, this Court became *functus officio* as rightfully submitted by the Respondent, save for the right to resentencing pursuant to the ***Francis Muruatetu*** decision. As pointed elsewhere in this judgment, ***Article 165 (6)*** of the Constitution does not vest supervisory jurisdiction on the High Court over courts that are superior to it, including the Court of Appeal. The fact that the Petitioner pursued an appeal and failed means that he is precluded from approaching the High Court again even through a constitutional petition to seek redress over the same matter. This is because this Court lacks jurisdiction to rehear matters especially of sentence in which it already pronounced itself on and in which the Court of Appeal which is superior in ranking has already addressed. 7. If the Petitioner wanted to seek for resentencing, then he ought to have approached the trial Court to make a pronouncement as to whether the death penalty imposed could be reviewed, in view of the Muruatetu decision, which, nonetheless, did not outlaw death penalty. 8. Concerning life imprisonment, the trial court, it is observed, never imposed life imprisonment upon convicting the petitioner for the offence of murder. It is the death penalty that was commuted to life imprisonment by the President exercising his prerogative powers under Article 133 (1) (c) of the Constitution which empowers the president to substitute a less severe form of punishment. Therefore, the power conferred by the Constitution cannot be rendered unconstitutional by this Court. Article 2 of the Constitution declares the supremacy of the Constitution and its binding nature on all persons and state organs at both levels of government. Further, no person can claim or exercise authority except as authorised under the Constitution. Additionally, the said Article 2(3) is clear that the validity or legality of the Constitution is not subject to challenge by or before any court or other state organ. 9. Article 133 having mandated the President to substitute sentence imposed on the petitioner from death to life imprisonment which is a less severe form of punishment, cannot be rendered unconstitutional by this Court. 10. Regarding the constitutionality of the life imprisonment, Article 133 aside, the Supreme Court in ***Republic v Ayako (Petition E002 of 2024) [2025] KESC 20 (KLR) (11 April 2025) (Judgment)*** had this to say: ***“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***](https://new.kenyalaw.org/akn/ke/act/2010/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***](https://new.kenyalaw.org/akn/ke/act/2010/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***](https://new.kenyalaw.org/akn/ke/act/2010/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***](https://new.kenyalaw.org/akn/ke/act/2010/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***](https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/34)***, 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***](https://new.kenyalaw.org/akn/ke/judgment/kesc/2017/2)***, faced with a similar question of ascribing a term sentence to life imprisonment, this court considered article 51 of the***[***Constitution***](https://new.kenyalaw.org/akn/ke/act/2010/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. The Supreme Court was clear in the above decision that Courts do not have the Jurisdiction to substitute a life sentence with a sentence of 30 years imprisonment 2. The Supreme Court focused on whether courts possessed the jurisdiction to determine the constitutionality of life imprisonment as a court of first instance and whether it usurped legislative powers by equating "life" to a 30-year term. The Court held that the Court of Appeal acted without jurisdiction, as Article 165(3)(d) vests the High Court with the exclusive mandate to hear constitutional challenges at first instance. Jurisdiction, being a matter of law, could not be conferred by the parties' "consent" or judicial innovation. 3. Furthermore, the court ruled that the appellate court violated the doctrine of separation of powers; while sentencing involves judicial discretion, Articles 94 and 51(3) of the Constitution reserved the power to define the parameters of life imprisonment exclusively to Parliament. Finally, the Court found a breach of stare decisis, clarifying that the Muruatetu I rationale was strictly limited to the death penalty. Consequently, the court allowed the appeal, set aside the 30-year sentence, and reinstated the respondent's life imprisonment. 4. Therefore, although this Court is the court with original jurisdiction to hear and determine constitutional challenges, I find no unconstitutionality in the life imprisonment, being the less severe punishment that the President has power under Article 133 of the constitution to impose in exercise of his power of Mercy upon advice by the Advisory Committee on the Power of Mercy as established under Article 133 (2) of the Constitution. 5. It is further trite that litigation must come to an end and this Court being the forum for constitutional redress cannot be manipulated as a constitutional forum to rehear issues of resentencing and the legality of a sentence, which have been repackaged as a constitutional grievance. I find that in the absence of the lawful authority to act, and being already functus officio, this Court must down its tools. 6. In the premises, I find and hold that this Court is unable to declare that death sentence as commuted to life imprisonment is unconstitutional in view of Article 133 as read with Article 2(3) of the Constitution. 7. Accordingly, the petition dated 3rd January, 2025 is hereby dismissed with no orders as to costs. 8. This file is closed. 9. Orders accordingly. **Dated, Signed and Delivered virtually at Nairobi this 3rd Day of August, 2026** **R.E. ABURILI** **JUDGE**