Kimweli v Republic (Criminal Miscellaneous Application E023 of 2024) [2025] KEHC 19564 (KLR) (27 October 2025) (Ruling) Neutral citation: [2025] KEHC 19564 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT KITUI CRIMINAL MISCELLANEOUS APPLICATION E023 OF 2024 LW GITARI, J OCTOBER 27, 2025 BETWEEN JOHN MBIVI KIMWELI ......................................................................... APPLICANT AND REPUBLIC ............................................................................................ RESPONDENT RULING 1. The applicant seeks review of the sentence imposed on him in the Chief Magistrate’s Court Kitui Criminal Case No. 433 of 2007. 2. In the case, the appellant was charged with Robbery with violence contrary to Section 296 (2) of the Penal Code. After a full trial the applicant was sentenced to death. From the grounds in support of this application the applicant avers that he filed an appeal against the decision of the learned magistrate in the High Court at Kitui, Criminal Appeal No. 16 of 2016 whereby the Judges, Makhandia and Dulu JJ. Upheld the conviction and sentence. He filed a second appeal in the Court of Appeal at Nairobi, Criminal Appeal No. 309 of 2012 but the conviction and sentence was upheld on 6/6/2014. 3. That the death sentence was subsequently commuted to life imprisonment by the President in 2009. The applicant urges the court to re-sentence his as the death penalty was declared unconstitutional. 4. He relies on Criminal Appeal No. 22 of 2018 at Kisumu and Petition No. 6 of 2022 at Mombasa delivered on 6/2/2024. The respondent opposed the application and submitted that the appellant was charged with a serious ofience. That the conviction was upheld by the two Higher Courts, that is The High Court and the Court of Appeal. He relies on the Supreme Court decision in Petition No. 18/2023 Republic v Joshua Gichuki where the Supreme Court held that mandatory sentences are legal. He submits that the sentence the applicant is serving is lawful. That it be upheld. 5. I have considered the application and the submissions by the prosecution’s counsel. The issue that arises for determination is whether this court has jurisdiction to re-sentence the applicant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19564/eng@2025-10-27 1
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6. The Supreme Court while dealing with the mandatory death penalty in murder cases in the case of Francis Karioko Muruatetu & Another v Republic Petition No. 15 & 16 of 2015 issued guidelines on the issue of mandatory sentence for robbery with violence under the Penal Code and the Sexual Offences Act. 7. The Supreme Court stated that the Judgement in Francis Karioko Muruatetu & Another v Republic Petition No. 15 & 16 of 2015 applies only in convictions where an accused person who were charged with murder and had been sentenced to mandatory death sentence. 8. The sentence court ordered that persons charged with murder and sentenced to a mandatory death penalty were entitled to re-sentencing hearing and courts were mandated to consider both aggravating and mitigating factors during re-sentencing hearing. Supreme Court therefore clarified that Muruatetu did not invalidate all mandatory sentences under the Penal Code. 9. Following applications for re-sentencing by other accused persons and courts who had been sentenced to serve mandatory sentences for robbery with violence and under the Sexual Offences Act, the Supreme Court re-affirmed its decision in Muruatetu’s case (supra) in the case of Republic v Gichuki (supra). It was held that the sentence under Section 296(2) of the Penal Code is lawful and the courts have no jurisdiction to amend the law unless is amended by Parliament. 10. However, where a sentence is set in the statute, the legislature has already determined the course, unless it is declared unconstitutional, based on sound principles and clear guidelines upon which the legislative should then act. That suffice to say where Parliament enacts legislation, the Judicial arm should adjudicate disputes based on the provisions of the law. 11. The Supreme Court went on to set aside the decision of the Court of Appeal which had set aside a mandatory sentence under the Sexual Offences Act (cap 44 Laws of Kenya). 12. The decision of the Supreme Court binds this court as provided under Article 163(7) of the Constitution which provides: “ All Courts, other than Supreme Court are bound by the decisions of the Supreme Court.” 13. The applicant relies on the decision of the Court of Appeal. In the light of the Supreme Court decision which is higher that the Court of Appeal, it is the decision of the Supreme Court that should stand in the circumstances. The Supreme Court stated that: “ The decision of Muruatetu and these guidelines apply only in respect to sentences of murder under Section 203 and 204 of the Penal Code.” 14. Thus, the Supreme Court re-affirmed that re-sentencing was only in cases of murder. I note that the sentence imposed on the applicant has since been committed to life imprisonment. This court lacks jurisdiction to re-sentence the applicant. Conclusion: 1. The application lacks merits. 2. The application is dismissed. DATED, SIGNED AND DELIVERED AT KITUI THIS 27TH DAY OF OCTOBER, 2025. HON. LADY JUSTICE L. GITARI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19564/eng@2025-10-27 2
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