Gakuya v Republic (Criminal Petition E018 of 2025) [2025] KEHC 15122 (KLR) (21 October 2025) (Judgment) Neutral citation: [2025] KEHC 15122 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT KIBERA CRIMINAL PETITION E018 OF 2025 DR KAVEDZA, J OCTOBER 21, 2025 BETWEEN ANTONY WAWERU GAKUYA ........................................................... PETITIONER AND REPUBLIC ............................................................................................ RESPONDENT JUDGMENT 1. The Petitioner was convicted of the offence of robbery with violence contrary to Section 296(2) of the Penal Code in Kibera Chief Magistrate’s Court Criminal Case No. 3615 of 2009 and sentenced to death. His appeals before the High Court and the Court of Appeal were both dismissed. 2. Following the Supreme Court’s decision in Francis Karioko Muruatetu & Another v Republic [2017] eKLR (Muruatetu I), the Petitioner’s case was remitted to the trial court for re-sentencing. After considering his mitigation, the trial court substituted the death sentence with life imprisonment. 3. The Petitioner has now filed the present petition dated 29th April 2025 seeking a further resentencing, citing the fact that he has been in custody for 17 years and argues that this period has allowed for full rehabilitation. 4. The issue for determination is whether the sentence imposed upon the petitioner is unconstitutional in light of the recent pronouncements of the Supreme Court on mandatory and minimum sentences. 5. The doctrine of stare decisis obliges this Court to follow the binding decisions of the Supreme Court. Article 163(7) of the Constitution provides that: “ all courts, other than the Supreme Court, are bound by the decisions of the Supreme Court.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/15122/eng@2025-10-21 1
page 1 of 2
6. This principle ensures consistency and certainty in the administration of justice, and it leaves no room for a subordinate court to deviate from a settled position of law declared by the apex court. 7. In Republic v Joshua Gichuki Mwangi [2024] KESC 34 (Petition No. E018 of 2023), the Supreme Court addressed the constitutionality of minimum and mandatory sentences under statutes of parliament. The Court held that the Court of Appeal had acted in error by assuming original jurisdiction to determine the constitutionality of minimum sentences when that issue had not been raised or determined at the trial level. The Supreme Court consequently set aside the Court of Appeal’s judgment that had declared the minimum sentences for sexual offences unconstitutional. 8. The Supreme Court further clarified that its earlier decision in Francis Karioko Muruatetu & Another v Republic [2017] eKLR was limited to the mandatory death sentence under section 204 of the Penal Code. It did not invalidate statutory minimum or mandatory sentences provided for in other statutes, including the Penal Code and the Sexual Offences Act. The Court reafirmed that Parliament has the constitutional authority to define offences and prescribe corresponding penalties, including minimum or mandatory terms, provided such laws do not infringe the Bill of Rights. Judicial discretion in sentencing must therefore operate within the framework established by statute. 9. The ratio decidendi in Joshua Gichuki Mwangi (supra) is binding on this Court. The Supreme Court’s pronouncement conclusively settles the question of the constitutionality of minimum and mandatory sentences. Consequently, the petitioner’s challenge to the sentence cannot stand. 10. The record of the trial court demonstrates that the learned magistrate considered the petitioner’s mitigation and his status as a first offender before imposing the sentence prescribed by law. There is no indication that the trial court overlooked any material factor or acted under a misapprehension of the law. 11. The petitioner also exercised his right of appeal before the High Court where his conviction and sentence were reconsidered and upheld. In view of the authoritative guidance of the Supreme Court, this Court finds no legal basis to interfere with the sentence imposed. The right forum for the applicant is the Court of Appeal. 12. The claim that the sentence is unconstitutional is therefore without merit. The petition discloses no violation of constitutional rights or any miscarriage of justice that would warrant intervention by this Court. 13. Accordingly, the petition is found to be devoid of merit and is hereby dismissed in its entirety. Orders accordingly. JUDGEMENT DATED AND DELIVERED VIRTUALLY THIS 21ST DAY OF OCTOBER 2025 D. KAVEDZA JUDGE In the presence of: Petitioner Present Mutuma for the Respondent Karimi Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/15122/eng@2025-10-21 2
page 2 of 2