Court dismisses petition on constitutionality of mandatory death sentence

The High Court on Thursday dismissed a petition challenging the constitutionality of the mandatory death sentence.

Justice Lawrence Mugambi also declined to hear a fresh sentencing request by the petitioner.

Justice Mugambi ruled that the petition lacked merit and that the High Court had no jurisdiction to revisit a matter that had already been determined by a court of superior jurisdiction.

The petition, filed on October 31, 2024, was supported by affidavits dated November 19, 2024, and sought to have the petitioner’s case reheard so that his mitigating circumstances could be considered.

The petitioner Byron Robert, argued that the mandatory death sentence violated his constitutional rights under Articles 27, 28, 29, and 50 of the Constitution.

Justice Mugambi said that the petitioner had previously filed a re-sentencing application Miscellaneous Criminal Application No. 82 of 2019, which was heard and dismissed by Justice Kimaru in September 2020.

In that ruling, the court had held that it lacked jurisdiction to revisit the sentence since the matter had already been determined by the Court of Appeal in Civil Appeal No. 90 of 2017.

Justice Mugambi held that once the Court of Appeal has pronounced itself on a matter, a lower court cannot reopen or vary that decision.

He further said that the High Court could not review or reverse the findings of a superior court, as doing so would violate the principle of functus officio which bars a court from reopening a case it has already concluded.

“The fact that a re-sentencing application was heard and determined by this court is not in dispute. It cannot be revisited under the principle of functus officio. Filing a constitutional petition does not change this fact,” Justice Mugambi said.

He said Article 165(6) of the Constitution prohibits the High Court from exercising supervisory jurisdiction over superior courts, adding that the petitioner’s remedy lay in pursuing an appeal at the Court of Appeal.