Rodgers Kutosi alias Paul Kutosi Lodgers v Republic (Criminal Appeal E020 of 2023) [2025] KECA 877 (KLR)
The bottom line
#Kenya's Court of Appeal replaced a death sentence with 25 years' imprisonment, confirming that a presidential commutation does not stop courts from reviewing sentences.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Court of Appeal has jurisdiction to interfere with the sentence imposed by the trial court where the sentence is alleged to have been commuted to life imprisonment by the President under Article 133 of the Constitution
- 2.Whether, in light of Muruatetu, the mandatory death sentence imposed before that decision should be reviewed on re-sentencing
- 3.Whether the sentence imposed by the trial court should be reduced to a term of years, taking into account aggravating and mitigating circumstances and time spent in custody under section 333(2) of the Criminal Procedure Code
Key legal issues
#Whether the Court's jurisdiction to review sentence is barred by a presidential commutation under Article 133
It is not; the commutation does not constrain the Court's jurisdiction to review the actual sentence imposed.
State counsel argued that the President's commutation of the death sentence to life imprisonment amounted to the President meting out a sentence that courts cannot usurp, but she cited no authority. The court found nothing on record evidencing the commutation and held in any event that powers of mercy under Article 133 do not displace the judicial sentencing function, which remains a matter for the courts under Muruatetu.
Whether the pre-Muruatetu death sentence should be revisited on re-sentencing
Yes. The trial court sentenced before Muruatetu, and on re-sentencing the court weighed the Muruatetu factors and interfered with the death sentence, substituting 25 years.
The trial judge had expressly noted the unresolved debate on the mandatory death sentence. The court applied the ten Muruatetu mitigating factors, restated in the 2021 decision and Guideline 4.8.20 of the Sentencing Policy Guidelines, 2023. The appellant was 24 years old, a first offender, not premeditating the killing, but gender-based violence and deterrence weighed against leniency.
Whether the murder was premeditated
To an extent it was not, since the appellant went to the deceased's house to persuade her to return, and stabbed her once upon being rebuffed.
PW8 testified that the appellant, escorted by the chief's letter, intended only to convince the deceased to return to him. It was upon being rebuffed that he stabbed her once. This bore on the mitigating weight but the killing remained reprehensible and, following gender-based violence, called for a deterrent sentence.
Legal principles established
#- A presidential commutation of sentence under Article 133 of the Constitution does not oust the Court of Appeal's jurisdiction to review the sentence imposed by the trial court.
- In a second appeal, the Court of Appeal's jurisdiction is confined to matters of law only, and severity of sentence is statutorily a question of fact.
- Sentencing is a judicial function enabling courts to exercise discretion on principle, on an individualized case-by-case basis, considering the Muruatetu aggravating and mitigating factors.
- On re-sentencing after Muruatetu, a court must consider both aggravating and mitigating circumstances, including time spent in custody under section 333(2) of the Criminal Procedure Code.
Court orders
#- 1.The appeal partly succeeds: the sentence of death is set aside and substituted with a term of twenty-five (25) years imprisonment
- 2.By dint of section 333(2) of the Criminal Procedure Code, the sentence runs from 16th April, 2014
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- Not stated
- Jurisdiction invoked
- First appeal to the Court of Appeal in a murder conviction; jurisdiction on second appeal circumscribed by Section 361(1) of the Criminal Procedure Code, confined to matters of law
Relief refused
#Reduction of sentence to 12 years imprisonment as proposed by the appellant's counsel
The court found that gender-based violence was perpetrated against the deceased and the conduct called for a deterrent sentence; after weighing aggravating and mitigating factors it substituted 25 years instead
The appellant abandoned his appeal against conviction
He pursued the appeal on sentence only
Costs
No costs order made in the judgment.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In any event, a presidential commutation of sentence does not constrain this Court’s jurisdiction to review the actual sentence imposed on a convict.
In the result, this appeal partly succeeds to the extent that, we set aside the sentence to death, and substitute therefor with a term of twenty-five (25) years imprisonment.
By dint of section 333(2) of the Criminal Procedure Code, the sentence will run from 16th April, 2014 since the appellant has been in custody since then.
sentencing is a judicial function which enables the courts to exercise discretion, on principle, in an individualized case-by-case basis with a view to imposing appropriate and just sentences.
Issues in the judgment
#The judgment states the appellant 'has been in custody since' 16th April 2014 in the final orders, but earlier states the appellant was arrested on 6th June 2014 and counsel submitted he 'has been in prison since 5th April 2014'; the three dates are inconsistent.
In the narrative passage the deceased is said to have been stabbed, but the text reads 'he stabbed the appellant once', apparently an error referring to the deceased.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Rodgers Kutosi alias Paul Kutosi Lodgers v Republic (Criminal Appeal E020 of 2023) [2025] KECA 877 (KLR)", Case Analysis (2025). Criminal Appeal (not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/877/eng@2025-05-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.