https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11697

Kamau v Director of Public Prosecution (Criminal Miscellaneous Application E022 of 2026) [2026] KEHC 11697 (KLR) (Crim) (27 July 2026) (Ruling) Neutral citation: [2026] KEHC 11697 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Criminal Criminal Miscellaneous Application E022 of 2026 AM Muteti, J July 27, 2026 (ARISING FROM CR NO 42 OF 2011 MILIMANI HIGH COURT) IN THE MATTER OF: ALLEGED CONTRAVENTION OF RIGHTS OR FUNDAMENTAL FREEDOMS UNDER ARTICLES 19, 20, 22, 23, 25, 27, 28, 29, 50, 51, 159 AND 165 OF THE CONSTITUTION OF KENYA AND ALL OTHER ENABLING POWERS AND PROVISIONS OF THE LAW AND IN THE MATTER OF: APPLICATION AND ENFORCEMENT OF SECTION 333 (2) OF THE CRIMINAL PROCEDURE CODE IN RELATION TO SENTENCES THAT HAVE NOT FACTORED THE TIME SPENT IN CUSTODY. AND IN THE MATTER OF: FRANCIS MURUATETU KARIOKO&ANOTHER V REPUBLIC PETITION NO.15 & 16 OF 2015 Between Winrose Njeri Kamau Applicant and Director Of Public Prosecution Respondent Ruling 1.The applicant moved this court by way of a notice of motion seeking for orders that the court substitutes the sentence of life imprisonment that the applicant is serving with a definite sentence. 2.The applicant asserted that she was convicted of Murder c/s 203 as read with 204 of the Penal Code and sentenced to suffer death which sentence was later commuted to life by the president in 2016. 3.The applicant maintained that she was arrested on 28/04/2011 and has been in prison since. 4.The applicant was arraigned in Court on a charge of Murder contrary to Section 203 as read with 204 of the Penal Code whereby she was found guilty of the charge and consequently convicted to suffer death. 5.The applicant further told the court that she had filed an appeal, at the Court of Appeal via no.89/2019 which was dismissed. 6.Following the dismissal of the appeal the applicant sought for a resentence which was also dismissed. 7.The applicant anchored this second re-sentencing application under sections 362-364, and Article 165 of the Constitution. 8.The applicant further invoked the provisions of Article 20 and 22 of the Constitution to approach this Hon. Court arguing that the court can intervene in a case whereby her rights as enshrined under the Bill of Rights are threatened, contravened or likely to be violated. 9.In her oral submission before the court the applicant said that she regretted what she had done to her own husband with whom they had 3 children. 10.The applicant while pleading for mercy from this court stated that she had apologized to their children over the killing of the deceased and she was desirous to join them once released by this court. 11.The application was opposed by the state through Mr. Mogere prosecution counsel who argued that this court lacks jurisdiction to entertain the matter since the applicant had been sentenced by the High Court and the sentence was confirmed by the Court of Appeal. 12.The issue of jurisdiction is a threshold issue that the court must address its mind to whenever raised in limine. 13.A court cannot proceed to determine a matter without pronouncing itself on the question since that goes to determine whether the court can act on the matter and grant the relief sought by a party for a court should not act in vain. 14.In Owners of Motor Vessel Lillian “S” Vs Caltex Oil (K) Ltd (Civil Appeal 50 of 1989) [1989] KECA 48 (KLR) the Court of Appeal held that jurisdiction is everything and without it a court must down its tools. 15.The court must therefore steer away from inquiring into a matter once it determines that it lacks the jurisdiction to do so. An adjudication of a matter without jurisdiction is a nullity and amounts to nothing. 16.The jurisdiction of the High Court stems from Article 165 of the Constitution and any other statute conferring jurisdiction upon the it. 17.A judge of the High Court cannot overturn a decision of a judge of concurrent jurisdiction. 18.The Honorable retired Justice Bwonong’a on the 15th Dec 2021 dismissed an application for resentencing by this same applicant. The applicant having been tried for murder and sentenced by the High Court for murder. 19.This court cannot review the decision of a judge of concurrent jurisdiction and neither can it review a decision of the Court of Appeal purporting to draw authority from the Constitution or statue law. The powers of revision under Sections 362 and 364 of the Criminal Procedure Code as read together with Article 165(6) of the Constitution do not extent that far. 20.The sentence that the applicant is serving has been held to be a legal sentence by the Supreme Court until parliament amends the law to deal with the indeterminate nature of a life sentence or the Courts pronounce themselves on the Constitutionality of it in a petition touching on the same. 21.In Muruatetu & another v Republic; Katiba Institute & 5 others (Amicus Curiae) (Petition 15 & 16 of 2015) [2021] KESC 31 (KLR) (6 July 2021) (Directions) the Supreme court guided the High Court thus; “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”. 22.The applicant having approached the High Court vide High Court Misc. Cr. App. No. E310 of 2020 resentencing and the same having been dismissed by the Hon Mr. Justice Bwonong’a (now Rtd), the applicant cannot invoke the jurisdiction of this court again without falling into the category of a perennial litigant who never tires and keeps knocking at the door of the court in the faint hope that the court would relax its position in their favor even where the law is clearly against them. 23.The new phenomena of litigation, has become a common thing with prisoners serving long sentences and they do not seem to appreciate that litigation must at some point close. 24.The death sentence having been commuted by the President in exercise of the executive authority vested in him under the Constitution and Section 23 of the Power of Mercy Act which provides;-“Notification of grant or denial of petition(1)The President shall, within thirty days of receipt of the recommendations by the Committee, consider the recommendations and either approve or reject the petition.(2)Where the President approves or rejects a recommendation of the Committee pursuant to subsection (1), the Committee shall, in writing, notify the petitioner or their representative of the President’s decision within seven days.(3)The Committee shall cause the approved petitions under subsection (1) to be published, in the Gazette, within twenty-one days of the receipt of the President’s decision.(4)The decision of the President for each petition made under this section shall be final (emphasis added), the applicant must realize that she has come to the end of the road until such time that parliament shall in its wisdom determine what life sentence is and express it in terms of years. 25.The upshot of the above is that this court lacks the jurisdiction to entertain the instant application and the same is hereby dismissed in its entirety. 26.It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 27TH DAY OF JULY 2026.A. M. MUTETIJUDGEIn the presence of:Court Assistant: HabibaApplicant - presentMogere for Respondent