Wycliffe Nyamweya Bundi v Director of Public Prosecutions

the accused persons were sentenced to serve thirty (30) years imprisonment on each count. 3. Upon appeal, the High Court in Eric Magwaro Ontumbo v Republic [2015] eKLR dismissed the appeal against conviction and enhanced the sentence in respect of the robbery with violence counts to death. 4. The Petitioner, Wycliffe Nyamweya Bundi has filed the present constitutional petition seeking the following orders: 1) A declaration that it is within the Petitioner’s constitutional right under Article 22 of the Constitution to institute these proceedings. 2) A declaration that the mandatory nature of the death penalty meted upon the Petitioner under section 296(2) of the Penal Code is unconstitutional. 3) A declaration and an order that the Petitioner be presented before the trial court for rehearing on mitigation and sentence. 4) In the event of re-sentencing, an order for compliance with section 333(2) of the Criminal Procedure Code with a view of accounting for the period already spent in custody. 5) Costs of the petition. 6) Any other appropriate relief.

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6. The Respondent opposed the petition and maintained that this Court is functus officio, the issues raised having been conclusively determined on appeal. 7. I have carefully considered the petition, supporting affidavit and the material placed before the Court and the following issues arise for determination: 1) Whether this Court has jurisdiction to reopen the Petitioner’s sentence after the conclusion of the appellate process. 2) Whether the principles in Muruatetu apply to the offence of robbery with violence under section 296(2) of the Penal Code. 3) Whether the Petitioner is entitled to the reliefs sought. 8. On the first issue, the record before this Court reveals that the Petitioner’s conviction and sentence were conclusively determined on appeal where the High Court upheld the convictions and enhanced the sentence in respect of the robbery with violence counts to death. 9. The Petitioner has invoked sections 216, 329 and 333(2) of the Criminal Procedure Code in support of the plea for resentencing. Sections 216 and 329 of the Criminal Procedure Code empower a trial court, before passing sentence, to

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receive such evidence as it considers necessary in order to inform itself on the appropriate sentence to be imposed. Those provisions apply at the stage of sentencing before the trial court or during a lawful appellate process where sentence is properly before the appellate court. 10. Section 333(2) of the Criminal Procedure Code requires a sentencing court, in imposing sentence, to take into account the period already spent in custody. However, the Petitioner’s sentence was conclusively considered and determined on appeal where the sentence in respect of the robbery with violence counts was enhanced to death. 11. The Petitioner’s conviction and sentence were conclusively determined through the appellate process and this Court consequently became functus officio upon determination of the appeal. In Raila Odinga & 2 Others v Independent Electoral and Boundaries Commission & 3 Others [2013] eKLR, the Supreme Court observed that the doctrine of functus officio is intended to ensure finality in litigation and to prevent a court from revisiting a matter that has already been conclusively determined. circumstances, this Court lawfully cannot In the reopen or reconsider the sentence imposed upon the Petitioner. I therefore agree with the Respondent that this Court lacks jurisdiction to reopen the Petitioner’s sentence.

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12. On the second issue, the Petitioner principally relies on the decision in Francis Karioko Muruatetu & Another v Republic (2017) eKLR (commonly referred to as Muruatetu I) to challenge the constitutionality of the sentence imposed upon him. 13. However, the legal position following the directions issued by the Supreme Court in Supreme Court in Francis Karioko Muruatetu & Another v Republic; Katiba Institute & 5 Others (Amicus Curiae) [2021] eKLR, that the decision in Muruatetu I applies strictly to the mandatory death sentence under section 204 of the Penal Code and did not automatically extend to other offences carrying mandatory sentences, including robbery with violence under section 296(2) of the Penal Code. 14. Consequently, the principles in Muruatetu I do not avail the Petitioner in respect of the sentence imposed for the offence of robbery with violence. 15. On the prayer seeking a declaration that the Petitioner is entitled under Article 22 of the Constitution to institute these proceedings, I note that every person has a right to institute proceedings alleging violation of constitutional rights. To that extent, the prayer is spent.

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16. On the prayer seeking a declaration that the mandatory death sentence under section 296(2) of the Penal Code is unconstitutional, I find that the same is not merited in view of the Supreme Court directions in Muruatetu II. 17. On the prayer seeking rehearing on mitigation and sentence, I find that this Court lacks jurisdiction to reopen the matter after the conclusion of the appellate process. 18. On the prayer seeking consideration of section 333(2) of the Criminal Procedure Code, I find that the same cannot issue in the absence of a lawful basis for interfering with the sentence imposed upon the Petitioner. 19. In the result, the Constitutional Petition dated 11th April 2025 lacks merit and the same is hereby dismissed. DELIVERED AT NYAMIRA THIS May 14th 2026 WAMAE.T. W. CHERERE JUDGE Appearances Court Assistant - Anita Petitioner - Present For the DPP - Mr. Chirchir (SADPP) DAY OF

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