John Nderitu Mburu v Republic

3. The Application is predicated on the following general grounds: a. That, the Applicant was charged and convicted for the offence of defilement contrary to section 8(1) as read together with 8(2) of the Sexual Offences Act in NKR MCSO NO 74 OF 2010 Republic versus Patrick Kiruma Kaniaru where he was sentenced to life imprisonment. b. That he appealed against the said decision to the HighCourt in NKR HCCRA NO 28 OF 2011 and thereafter to the Court of Appeal In NKR COACR APPL NO.20 OF 2015 both of which were dismissed and the sentence of the trial Court upheld. c. That new jurisprudence has since emerged on the unconstitutionality of an indeterminate life sentence such as the one meted on the Applicant hence making the same null and void. d. That the indeterminate life sentence meted on the Applicant in NKR MCSO NO 74 OF 2010 Republic versus Patrick Kiruma Kaniaru is thus ripe for review. e. That no prejudice will be suffered by the Respondent should the orders sought herein be granted. 4. That, he request the Court to review the conviction and sentence imposed upon him on 31st May 2017 in Naivasha Chief Magistrate's Court Criminal Case Number 1576 of 2015 upon being convicted for the offence of robbery with violence contrary to Section 296 (2) of the Penal Code. 5. That, he was initially charged with two counts alongside Francis Gathu Nyaga and Paul Njenga Mburu with two counts of robbery with violence, but his conviction and sentence was in respect of one count only. 6. That, in Count 1, the allegation against him was that on 12th August 2015 at Kikopey Trading Center in Gilgil District within Nakuru County, jointly with others before Court armed with offensive weapons namely metal bars and Somali swords robbed Leah Jepkoech Tanui of a mobile phone Make Tecno №6 valued at Kshs. 2,000/- and cash Kshs.200/= all valued at Kshs.2,200/- and at the time of such robbery used actual violence against the said Leah Jepkoech Tanui. 7. That, in Count II it was claimed that "While at Kikopey Trading Center, in Gilgil District within the Nakuru County jointly with others before Court while armed with offensive weapon namely metal bars and Somali Swords robbed John Ngugi Mwaura Macharia of a mobile phone Make Itel valued at Kshs.8,500/- and cash Kshs.20,000/= all valued at Kshs 28,500/- and at the time of such robbery, they wounded the said John Ngugi. 8. That the trial Court in its judgment delivered on 31 May 2017, was purportedly satisfied that the ingredients of the offence of robbery with violence in count II were established beyond reasonable doubt and convicted him on said count and sentenced him to death. 9. That, his friends Francis Gathu Nyaga, and Paul Njenga Mburu were all acquitted of the said charges. 10. That, he appealed to the High Court at Naivasha against the conviction and sentence by the Trial Court in Naivasha High Court Criminal Appeal No. 29 of 2017 and on 20th December 2018 the Court delivered a Judgement dismissing his appeal against conviction and sentence imposed upon him on 31st May 2017 in Naivasha. 11. That, he appealed to the Court of Appeal of Kenya at Nakuru in Mburu v Republic (Criminal Appeal 13 of 2019) (2024) KECA 1448 (KLR) (11 October 2024) where the Court in its Judgement dismissed his appeal and afirmed the High Court and the Trial Court decisions. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16378/eng@2025-10-24 2

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12. That, the Appellant's identification was not free from error as the particulars of offence in count II stated that the Complainant was robbed of Kshs 20,000/-and a mobile phone. However, PW1 in his evidence indicated that he was robbed ofKshs.5,300 and a mobile phone which was not indicated on the charge sheet. 13. That, the prosecution failed to call a critical witness one Leah Tanui was never called as a witness yet she is the one who purportedly identified him and to have been initially assaulted indeed the Trial Court abdicated its duty when it failed to invoke Section 150 of the Evidence Act and call such a critical witness. 14. That, there was a clear violation of his right to be heard, in that even though his appeal before the first Appellate Court was on both conviction and sentence, the High Court did not address the issue of the sentence, thereby occasioning an injustice and grossly infringing on my constitutional rights under Article 25(a) of the Constitution of Kenya 2010. 15. That, the High Court correctly noted that his defence was never considered at all by the Trial Court yet the defence was not rebutted by the prosecution. Consequently, there was gross violation of his right to a fair trial. 16. That, the Court did not consider the aggravating circumstances during the sentencing time. 17. That, his right to fair trial was infringed by failure to accord him a legal representation at the expense of the state or by failure to inform him of the right to legal representation. 18. That, he did not provide any mitigation neither was his mitigation considered before being sentenced by the Trial Court. See Geoffrey Ngotho Mutiso vs Republic (2010) eKLR 19. That, the Trial Court did not consider mitigating factors but merely relied on erroneous principles which were not in view of the Supreme Court reasoning in the Muruatetu case. 20. That, the Trial Court did not consider that the charge sheet was defective with different particulars of offence. 21. That, the period he was in custody before sentence was not taken into account when he was being sentenced. 22. That, on the reasoning of the Supreme Court in the case of Muruatetu (supra), this Court has jurisdiction to review sentences imposed by Courts in situations of mandatory statutory death sentences, even if an appeal to the highest Court has been dismissed. 23. That, the Supreme Court allowed Courts to consider mitigating circumstances and factors in determining the appropriate sentence to impose, instead of just handing down the mandatory death sentence in all cases. 24. That, a death sentence is a cruel, inhuman and degrading punishment, and violates his right to life. 25. That, he has a legitimate expectation to enjoy the full benefit and protection of the law, that this right was violated when he was sentenced to serve a harsher sentence thus contravening his right under Article 50(2)(p) of the Constitution which decrees that a convicted person should benefit from the least severe of the prescribed punishments for an offence. 26. That, the fact that he was sentenced to death instead of a lesser sentence under Section 297 (2) of the Penal Code contravened his constitutional right to fair trial. 27. That, he implore this Court to find that he is entitled to protection of the law under Article 27 (1) (2) of the Constitution which denotes the full and enjoyment of all rights and fundamental freedoms. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16378/eng@2025-10-24 3

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28. That, the Trial Court erred in law by convicting and sentencing him without observing that Section 296 (2) of the Penal Code is in contravention of Article 2 (1) (4) of the Constitution. The Constitution has declared itself superior to the supremacy thus outweigh all other laws inferior for their inconsistence with the constitution. 29. That, the Court has power to address the issues raised and advance the law as provided under Articles 19, 20, 21, 22(1) 23,25 27, 50(1) (2) (p) 159(2) 165(3) (9) and 259 of the Constitution, Section 216 read with 329 of the Criminal Procedure Code Cap 75 Laws of Kenya., Section 296(2) of the Penal Code Cap 63 Laws of Kenya. 30. That, pursuant to Article 50(1) of the Constitution every person has a right to have a dispute resolved by the application of the law in a fair and public hearing before a Court or if appropriate another independent body. 31. That, the Court should make strides to promote the protection and observance of human rights in Court and all spheres of life to secure appropriateness and proportionality on sentencing of an offender. 32. That, he seeks the revision/substitution of his sentence with a probationary term or lesser sentence. 33. That, he is remorseful and repentant. 34. That, no life was lost during the incident that happened and the amount lost was substantially small. 35. That, he had no previous criminal record at the time of sentencing. 36. That, he has taken full advantage of the rehabilitation programme and acquired a certificate in Carpentry & Joinery, Biblical Studies and First Aid among others. 37. That, this honourable grant him the orders herein above prayed for the interest of justice. Issue for determination 38. The issue for determination is whether the Applicant has established a case for revision based on the provisions of Article 165 (6) of the Constitution and under Section 362 of the Criminal Procedure Code. The Law 39. 40. The High Court power of revision is set out in Article 165 which provides: (6) The High Court has supervisory jurisdiction over the subordinate Courts and over any person, body or authority exercising a judicial or quasi-judicial function, but over a superior Court. (7) For the purposes of clause (6), the High Court may call for the record of any proceedings before any subordinate Court or person, body or authority referred to in clause (6), and may make any order or give any direction it considers appropriate to ensure the fair administration of justice. Section 362 of the Criminal Procedure Code, empowers the High Court to call and examine the record of any criminal proceedings before any Subordinate Court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed and as to the regularity of any proceedings of any such Subordinate Court. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16378/eng@2025-10-24 4

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41. Section 364(1) of the Criminal Procedure Code provides: “ In the case of a proceeding in a subordinate Court the record of which has been called for or which has been reported for orders or which otherwise comes to his knowledge, the High Court may”(a) in the case of a conviction, exercise any of the powers conferred on it as a Court of appeal by section 354, 357 and 358, and may enhance sentence; (b) In the case of any other order other than an order of acquittal alter or reverse the order. (2) No order under this section shall be made to the prejudice of an accused person unless he has had an opportunity of being heard either personally or by an advocate in his own defence.” 42. Article 165 of the constitution bestows supervisory jurisdiction over Subordinate Courts and Tribunals. 43. This Court can only disturb the exercise of discretion where it is apparent that the same was fettered. 44. The Applicant contends that the indeterminate sentence of life imprisonment was unconstitutional. 45. The Applicant has not showcased how this Court failed to exercise its discretion judiciously. 46. This Court has limited jurisdiction to review decisions of Lower Court and Tribunals. Where a convict Appeals from the Lower Court, the High Court will consider the Appeal on both conviction and sentence and where such an Appeal is dismissed then the conviction and sentence is confirmed. 47. In this instance this Court lack jurisdiction to review a sentence confirmed by a High Court and further confirmed by the Court of Appeal. 48. This being a criminal revision, the onus was on the Applicant to demonstrate the sentence was imposed was illegal, that its imposition was grossly irregular and that the Trial Court did not exercise its discretion in a judicious manner. 49. In the upshot this Court finds that it cannot re-open and review the sentencing that has been determined and subsequently reviewed by this very Court confirmed on both 1st and 2nd Appeal. 50. The Argument of the Sentence of death being cruel and inhuman is unproven and cannot be a ground for review, the sentence imposed was a lawful and constitutional sentence unless the legislators deem otherwise and expunge the same from our penal laws. 51. On the 11th April 2025 the Supreme Court of Kenya in Republic Vs. Julius Kitsao SC Petition No. E013 of 2024 reversed the Manyeso decision of the Court of Appeal holding that the Court of Appeal acted ultra vires and without jurisdiction by assuming original jurisdiction on a constitutional issue not raised at the Superior Court, that the Court of Appeal violated the principle of stare decisis by misapplying the decision in the Muruatetu I and II Cases and finding life imprisonment sentence to be unconstitutional. Accordingly Life sentence remains a sentence that runs the entire natural life of a convict. 52. This Court finds this Application to lack merit and the same is dismissed. 53. The Court notes that the Applicant may by industry and good conduct earn mercy by the Prerogative of Mercy Committee. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16378/eng@2025-10-24 5

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It is so ordered. SIGNED, DATED AND DELIVERED IN OPEN COURT AT NAKURU ON THIS 24TH DAY OF OCTOBER 2025 ............................................ MOHOCHI S.M JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16378/eng@2025-10-24 6

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