The High Court has affirmed that a death sentence commuted to life imprisonment cannot be challenged through a fresh constitutional petition after an appeal has been exhausted.
The court said it could not declare unconstitutional the life sentence arising from the President’s power of mercy.
In a decision that also underscores the unresolved statutory question of what life imprisonment means, the court added that its constitutional jurisdiction cannot reopen sentencing issues already determined through the appellate process.
Justice Roselyne Aburili held that courts cannot create a fixed prison term to replace life imprisonment because defining the parameters of life imprisonment is a legislative function.
“We must also reaffirm that, although sentencing is an exercise of judicial discretion, it is Parliament and not the Judiciary that sets the parameters of sentencing for each crime in statute,” she stated.
The judgment concerned George Kamau, who was convicted in 2015 for murdering Joyce Muthoni in 2012 in Kiambu County and sentenced to death. His conviction and sentence were upheld by the Court of Appeal before the President commuted the sentence to life imprisonment.
Kamau filed his petition in 2025, arguing that an indefinite life sentence violated his rights to dignity and protection from cruel treatment.
He said indefinite imprisonment without consideration of rehabilitation was disproportionate and sought a fixed term after his mitigation was considered.
The State opposed the petition, arguing that he had exhausted his appeal when the Court of Appeal dismissed his appeal on April 24, 2020. The prosecution said the High Court was functus officio and could not review a decision of a superior court.
Prisoner.
Photo credit: File | Fotosearch
The State said the death sentence was lawful under the Penal Code and Kamau had not shown constitutional violations. It sought dismissal.
Justice Roselyne Aburili said the fact that the Petitioner pursued an appeal and failed means that he is precluded from approaching the High Court again, even through a constitutional petition to seek redress over the same matter.
The judge said the trial court convicted Kamau of murdering Muthoni on August 12, 2012, at Ngecha village. The court considered the evidence and his defence before imposing the death sentence.
The Court of Appeal upheld the conviction and sentence. Kamau had challenged the use of circumstantial and DNA evidence and alleged that the burden of proof had been shifted to him. The appellate court rejected those grounds.
Justice Aburili said Kamau could have pursued resentencing before the trial court under the Supreme Court’s guidance in the Francis Muruatetu case.
“If the petitioner wanted to seek resentencing, then he ought to have approached the trial Court,” she said.
High Court judge Roselyne Aburili.
Photo credit: File | Nation Media Group
The judge distinguished the life sentence from the punishment. The trial court had imposed death, not life imprisonment. The President later exercised the power of mercy under Article 133(1)(c) of the Constitution to substitute the death penalty with a less severe punishment.
“Article 133 having mandated the President to substitute the sentence imposed on the petitioner from death to life imprisonment, which is a less severe form of punishment, cannot be rendered unconstitutional by this Court,” Justice Aburili ruled.
The judgment relied on Supreme Court rulings delivered in April 2025 on life imprisonment, where the apex court overturned a Court of Appeal decision that had converted life imprisonment into 30 years.
The Supreme Court said defining the parameters of life imprisonment is a legislative function and reinstated the life sentence.
In another case, the apex court similarly overturned a 40-year term substituted for life imprisonment and ordered the prisoner to serve the sentence imposed by the trial court.
The Supreme Court also noted that its 2017 recommendation for the Attorney General and Parliament to develop legislation defining life imprisonment had not been acted upon by the two Houses.
Justice Aburili cited that position in rejecting Kamau’s challenge. She noted that the trial court had imposed the death penalty and that the President, exercising powers under Article 133, later substituted it with the less severe punishment of life imprisonment.
She therefore held that the High Court could not invalidate the sentence imposed through that constitutional power.
The judge concluded that constitutional litigation could not become another route for rehearing a sentence after appeals ended.
“Litigation must come to an end,” she said, leaving the life sentence intact, while the question of its statutory parameters remains for Parliament.
