Dumba v Republic (Petition E001 of 2026) [2026] KEHC 1669 (KLR) (17 February 2026) (Judgment) Neutral citation: [2026] KEHC 1669 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT KIBERA PETITION E001 OF 2026 DR KAVEDZA, J FEBRUARY 17, 2026 BETWEEN DICKSON LUBASO DUMBA ............................................................... PETITIONER AND REPUBLIC ............................................................................................ RESPONDENT JUDGMENT 1. The Petitioner was charged and after a full trial convicted for the ofience of robbery with violence contrary to section 296(2) of the Penal Code. He was also convicted for the ofience of rape contrary to section 140 of the Penal Code. He was sentenced to death in count I and fifteen (15) years imprisonment in Count II. His appeal before this court was dismissed in Criminal Appeal No. 292 of 2007. The sentence was later commuted to life imprisonment. 2. The Petitioner has now approached this Court by way of a constitutional Petition seeking an order for resentencing. He contends that the mandatory nature of the sentence prescribed under section 296 of the Penal Code is unconstitutional. He states that he has exhausted all appeal avenues and now invokes sections 216 and 329 of the Criminal Procedure Code (Cap. 75, Laws of Kenya), urging the Court to consider his mitigation and substitute the life sentence with a definite term of imprisonment. 3. The issue for determination is whether the life sentence imposed upon the Petitioner is unconstitutional in light of the recent pronouncements of the Supreme Court on mandatory and minimum sentences. 4. Article 50(2)(p) of the Constitution guarantees the right to benefit from the least severe punishment where sentencing law changes after conviction. Article 165(3)(b) grants the High Court jurisdiction to determine the constitutionality of any act or omission. 5. In 2016, the judiciary developed the Sentencing Guidelines as a response to the challenges experienced by judges and judicial oficers. The Guidelines were developed pursuant to section 35(2) of the Judicial https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1669/eng@2026-02-17 1
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Service Act 2011. These guidelines recognised that sentencing is perhaps one of the most intricate aspects of the administration of trial justice. The guidelines collated the principles of law that should guide courts in the exercise of their discretion, so that sentences for analogous circumstances are delivered as transparently and consistently. 6. Since the formulation of the SPGs of 2016, the criminal justice landscape around sentencing has evolved significantly, prompting NCAJ to review (The Sentencing Policy Guidelines 2023) the Guidelines to align with the emerging jurisprudence, and make them more responsive to the justice needs of Kenyans. The revised SPGs provide guidance in sentencing where the mandatory minimum and maximum sentences are concerned, as well re sentencing hearings. 7. Consequently, the evolution of law and jurisprudence should grow in tandem with the Constitution while acknowledging the judiciary guidelines on sentencing. 8. It is equally my view that a sentence imposed on a convict has to meet the objectives of retribution, deterrence, rehabilitation, restorative justice, community protection and denunciation. Therefore, it is no longer necessary or desirable to hold a convict for an indeterminate amount of time as this does not meet the objectives of the sentencing policy guidelines. 9. In this case, it appears that in determining the sentence, the learned trial magistrate's decision was primarily infiuenced by the mandatory nature of the applicable law. This jurisprudence has since shifted after the promulgation of the Constitution of Kenya, 2010. Furthermore, it is significant to emphasize that indeterminate sentences deprive a convict of the opportunity to be heard in mitigation, while convicts facing lesser sentences are granted such an opportunity. The depravation constitutes unjustifiable discrimination, is unfair, and contravenes the principle of equality before the law as enshrined in Article 27 of the Constitution. Additionally, an indeterminate life sentence, amounts to inhumane treatment and violates the right to dignity under Article 28 of the Constitution. It is also a principle of international law that all prisoners serving life sentences should be afiorded the possibility of rehabilitation and the prospect of release if such rehabilitation is achieved. (See the decisions of the European Court of Human Rights: Vinter and others v. United Kingdom (Application nos. 66069/09, 130/10 and 3896/10) [2016] III ECHR 317 (9 July 2013) and Murray v. the Netherlands [GC], no. 10511/10, (26 April 2016) 10. In the instant case, the appellant was charged with the ofience of robbery with violence contrary to section 296(2) of the Penal Code. He was sentenced to serve death as per the law. The Petitioner has now served twenty-one (21) years imprisonment and seeks a definite term. A resentencing exercise thus falls within the law and applicable jurisprudence. 11. Having considered the Petition, the grounds advanced in support thereof, and the matters raised in mitigation, I turn to the appropriate sentence to be imposed. In view of the time already served, the gravity of the injuries infiicted, and the principles set out in the cited authorities, I am satisfied that a determinate sentence is the appropriate and proportionate response in these circumstances. 12. This case is marked by particularly heinous aggravating circumstances; the ofience of rape was committed during the robbery and in the presence of the victim’s husband and brother-in-law, a circumstance clearly intended to maximize her humiliation. It is a fundamental finding of this Court that the Petitioner violated the victim’s inherent dignity in a manner from which she may never fully recover, regardless of the psycho-social therapy she undergoes. 13. Accordingly, the death sentence originally imposed for the ofience of Robbery with Violence is hereby set aside and substituted with a sentence of forty-five (45) years’ imprisonment. The sentence of fifteen (15) years’ imprisonment for the ofience of rape is sustained. The sentences shall run concurrently https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1669/eng@2026-02-17 2
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from 22nd June 2005, the date of the Petitioner’s arrest pursuant to Section 333(2) of the Criminal Procedure Code. RULING DATED AND DELIVERED VIRTUALLY THIS 17TH DAY OF FEBRUARY 2026 D. KAVEDZA JUDGE In the presence of: Petitioner Present Mr. Mutuma for the Respondent Karimi Court Assistant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1669/eng@2026-02-17 3
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