Joseph Ngaruiya Rigwa v Republic

4. Notwithstanding the foregoing position, the Applicant invokes the directions issued by the Supreme Court in Muruatetu and urges this Court to undertake what he terms an “interpretation” of the mandatory sentence imposed upon him, which in substance amounts to a plea for resentencing. In his supporting affidavit, he avers that the trial court imposed the mandatory penalty without affording due consideration to his mitigation. 5. The Applicant therefore prays that this Court reviews the sentence imposed and substitute the same with a definite and lenient term of imprisonment after taking into account his mitigation, as contemplated under Article 50 of the Constitution and the applicable law. 6. He further prays that the period he spent in remand custody be taken into account pursuant to section 333(2) of the Criminal Procedure Code and the decision in Vincent Sila Jona & 87 Others v Kenya Prisons Service. Analysis and Denervation 7. Having carefully considered the application, the rival submissions of the parties, and the relevant legal authorities, the sole issue that commends itself for determination by this Court is: Whether the holding of the Supreme Court in Francis Karioko Muruatetu & Another v Republic which declared unconstitutional the mandatory death sentence prescribed for the offence of murder under section 204 of the Penal Code—renders the mandatory sentence provided under section 296(2) of the Penal Code for the offence of robbery with violence likewise unconstitutional or otherwise invalid. 8. The point of departure in resolving the present question lies in the decision of the Supreme Court in Francis Karioko Muruatetu & Another v Republic. In that seminal pronouncement, the Supreme Court undertook an exhaustive examination of the constitutionality of the mandatory death penalty prescribed for the offence of murder under section 204 of the Penal Code. The Court found that the mandatory character of the sentence deprived an accused person of the opportunity to present mitigation and unduly constrained judicial discretion in the sentencing process. In so doing, it was held that the provision offended the constitutional guarantees of human dignity, equality before the law, and the right to a fair trial as enshrined under Articles 25(c), 27, 28 and 50 of the Constitution. The Court consequently declared: “ The mandatory nature of the death sentence as provided for under section 204 of the Penal Code is hereby declared unconstitutional.” 9. The Court further directed that persons who had been sentenced pursuant to the impugned provision were at liberty to approach the High Court for purposes of re-sentencing so that their mitigation could be duly considered and an appropriate sentence imposed in the exercise of judicial discretion. It is nevertheless imperative to underscore that the determination was rendered within the specific context of the offence of murder, the provision directly under scrutiny being section 204 of the Penal Code. Consequently, the declaration of unconstitutionality was expressly confined to that statutory provision. 10. In the wake of that decision, however, a measure of uncertainty emerged within the criminal justice system as to whether the reasoning adopted in Francis Karioko Muruatetu & Another v Republic extended to other capital offences that similarly prescribed mandatory sentences, including the offence of robbery with violence under section 296(2) of the Penal Code. That uncertainty in turn necessitated https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19417/eng@2025-05-15 2

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further intervention by the Supreme Court, which subsequently issued clarificatory directions to delineate the precise scope and application of its judgment. 11. In those directions, the Supreme Court unequivocally clarified that the holding in Francis Karioko Muruatetu & Another v Republic was confined strictly to the offence of murder and could not be extended, as a matter of course, to other offences prescribing mandatory sentences. The Court was categorical that its pronouncement was limited in scope and expressly observed as follows: “ To clear the confusion that exists with regard to the mandatory death sentence in offences other than murder, we direct that in respect of other capital offences such as treason under section 40(3), robbery with violence under section 296(2), and attempted robbery with violence under section 297(2) of the Penal Code, a challenge on the constitutional validity of the mandatory death penalty in such cases should be properly filed, presented and fully argued before the High Court… Muruatetu as it now stands cannot directly be applicable to those cases.” 12. The import of that clarification is both plain and unequivocal. In the first place, the Supreme Court affirmed that the declaration of unconstitutionality in Francis Karioko Muruatetu & Another v Republic supra did not extend to other offences that prescribe mandatory sentences. Secondly, the Court directed that any challenge to the constitutional validity of such provisions must be instituted through appropriate constitutional proceedings before the High Court, where the issues can be properly framed, presented and fully adjudicated. It therefore follows that the decision in Muruatetu did not, by its own force or implication, invalidate the provisions of section 296(2) of the Penal Code. 13. The jurisprudential position was subsequently reaffirmed and fortified by the Supreme Court in Republic v Manyeso. In that matter, the Court considered, inter alia, the propriety of courts substituting mandatory sentences prescribed by statute with discretionary term sentences. The Supreme Court underscored that sentencing is fundamentally a matter governed by statute and that courts are duty-bound to impose the sentence prescribed by law unless and until the impugned statutory provision has been properly challenged and declared unconstitutional. In that regard, the Court cautioned against the unwarranted expansion of the principle articulated in Francis Karioko Muruatetu & Another v Republic supra beyond the specific context in which it was rendered, and proceeded to hold as follows: “ We are therefore unable to interfere with the sentence meted out by the trial court and upheld by the High Court in this matter… The implication thereof is that upon conviction, courts must pass the mandatory sentences that are prescribed.” 14. The Supreme Court further underscored that where the constitutionality of a sentencing provision has neither been directly impugned nor conclusively determined through proper constitutional litigation, the courts remain bound to apply the law as enacted by Parliament. In that regard, the Court reiterated that the reasoning articulated in Francis Karioko Muruatetu & Another v Republic was never intended to operate as a sweeping or blanket invalidation of all statutory provisions prescribing mandatory sentences under the Penal Code. 15. The doctrine of stare decisis is a cornerstone of the common law, obliging courts to follow the legal principles and interpretations established by higher courts in earlier decisions when adjudicating cases involving similar issues or facts. Derived from the Latin maxim “to stand by things decided,” the doctrine promotes consistency, predictability, and stability in the administration of justice. Under Article 163(7) of the Constitution, all courts in Kenya, other than the Supreme Court, are bound by its decisions. In practical terms, this means that once the Supreme Court has interpreted a constitutional https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19417/eng@2025-05-15 3

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or statutory provision, lower courts must apply that interpretation as authoritative and may not depart from it. In the present case, the doctrine requires this Court to adhere to the Supreme Court’s rulings in Francis Karioko Muruatetu & Another v Republic and Republic v Manyeso, which collectively establish that the unconstitutionality finding in Muruatetu is confined to murder under section 204 of the Penal Code and does not extend to robbery with violence under section 296(2). 16. The Applicant’s contention that this Court should, by parity of reasoning, apply the rationale in Muruatetu to invalidate the mandatory sentence under section 296(2) therefore runs directly counter to the express guidance of the Supreme Court. This Court cannot, under the guise of interpretation or sentence review, expand the scope of a Supreme Court decision beyond what that Court itself has authoritatively pronounced. To do so would amount to an impermissible departure from binding precedent and a clear affront to the constitutional hierarchy of courts. 17. The Applicant has further invited this Court to take into account the period he spent in remand custody pursuant to section 333(2) of the Criminal Procedure Code, which provides that any period of imprisonment served by an accused person prior to conviction shall be deducted from the sentence imposed by the court upon conviction. In support of this prayer, he relies on the decision in Vincent Sila Jona & 87 Others v Kenya Prisons Service, in which the High Court affirmed the mandatory duty of sentencing courts to give effect to section 333(2). The Court in that case emphasised that failure to apply the provision may warrant intervention by way of sentence review, so as to ensure that an accused person does not serve a custodial term in excess of that prescribed by law. 18. It must, however, be emphasised that the operation of section 333(2) of the Criminal Procedure Code presupposes the existence of a custodial sentence capable of computation. Section 333(2) provides that any period spent by an accused person in lawful custody prior to conviction shall be deducted from the sentence imposed by the court. The principle underpinning this provision is to ensure that an accused does not serve a term of imprisonment longer than that contemplated by law. This principle has been authoritatively applied in Njoroge v Republic [2024] KEHC 3995 (KLR), where the High Court adjusted a 20‑year custodial sentence to reflect 7 years and 4 months spent on remand, thereby giving full effect to the statutory requirement. 19. Similarly, in Kibiru v Republic [2025] KEHC 10081 (KLR), the High Court held that failure to account for pre‑sentence custody constituted a legal error and accordingly adjusted the commencement of the sentence from the date of arrest. 20. In the present case, however, the Applicant was convicted of robbery with violence under section 296(2) of the Penal Code and the trial court imposed the sentence expressly prescribed by law. In the absence of any valid basis for re‑sentencing, there is no new custodial term before this Court upon which the period spent in remand can be credited. It follows, therefore, that the Applicant’s prayer invoking section 333(2) is inapposite and cannot arise in the circumstances of this case. 21. In the final analysis, it is plain and manifest that the declaration of unconstitutionality in Francis Karioko Muruatetu & Another v Republic does not extend to the offence of robbery with violence under section 296(2) of the Penal Code. In deference to the doctrine of stare decisis and in strict observance of the binding authority of the Supreme Court, particularly as reiterated in Republic v Manyeso [2025] KESC 16 (KLR), this Court is bound to uphold the validity of the sentence lawfully imposed upon the Applicant. Any attempt to extend the reasoning in Muruatetu beyond the confines expressly set by the Supreme Court would constitute an impermissible departure from binding precedent and exceed the Court’s interpretative jurisdiction. 22. Consequently, and for the foregoing reasons, the application is devoid of merit and is hereby dismissed. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19417/eng@2025-05-15 4

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23. Each party shall bear its own costs. Orders accordingly. File Closed accordingly. DATED, SIGNED, AND DELIVERED VIRTUALLY THIS 13th DAY OF MAY 2025. ………………………………………………………………………….. BAHATI MWAMUYE MBS JUDGE In the presence of: Applicant present at Manyani Maximum Counsel for the Respondent- Mr. Mwandawiro Court Assistant - Ms. Lwambia https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19417/eng@2025-05-15 5

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