Okungu v Republic (Criminal Miscellaneous Application E196 of 2025) [2026] KEHC 2893 (KLR) (6 March 2026) (Ruling) Neutral citation: [2026] KEHC 2893 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT KISUMU CRIMINAL MISCELLANEOUS APPLICATION E196 OF 2025 A MABEYA, J MARCH 6, 2026 BETWEEN NAFTALI OTIENO OKUNGU ............................................................... APPLICANT AND REPUBLIC ............................................................................................ RESPONDENT RULING 1. This is a motion on notice dated 10/4/2025 by the applicant Naftali Otieno Okungu. In it he sought that his sentence be reviewed to a least punitive one. The motion was supported by his affidavit sworn on 10/11/2025. 2. The background is that, the applicant was charged before the Principal Magistrate’s Court at Winam with the offence of robbery with violence contrary to section 296(2) of the Penal Code Cap 63, Laws of Kenya. After trial, he was found guilty, convicted and sentenced to serve 15 years’ imprisonment. That is the sentence which he alleges to be harsh and wants reduced. 3. Section 296(2) of the Penal Code provides: “ If the offender is armed with any dangerous or offensive weapon or instrument, or is in company with one or more other person or persons, or if, at or immediately before or immediately after the time of the robbery, he wounds, beats, strikes or uses any other personal violence to any person, he shall be sentenced to death.” 4. That provision has not been amended. Both the Supreme Court of Kenya and the Court of Appeal, the top courts in his country have held that, unlike section 203 of the Penal Code, which the Supreme Court gave guidance on Muruatetu principles, the sentence under section 296(2) is still valid. 5. This means that once convicted under that section, one is supposed to face the death sentence. In this regard, the applicant is lucky that this is not an appeal. Otherwise, the State could seek enhancement https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2893/eng@2026-03-06 1
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of the sentence as the 15 years he was sentenced to was not only unlawful but also not in accordance with the law. 6. That being the case, this court has no jurisdiction under the law to review the said sentence. Let him appeal, if he did not do so, but with the attendant danger of a possibility of the enhancement of the sentence as already stated. 7. In the circumstances, the court finds that the application is without merit and dismisses the same. It is so ordered. DATED AND DELIVERED AT KISUMU THIS 6TH DAY OF MARCH, 2026. A. MABEYA, FCI Arb JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2893/eng@2026-03-06 2
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