The High Court at Nairobi has dismissed a petition by a
convicted murderer seeking to have his life sentence declared unconstitutional.
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George Kamau Wambui had asked the court to declare that his commuted death sentence to life imprisonment violates his rights to dignity and freedom from inhuman treatment under Articles 28 and 29 of the constitution.
Wambui, who has served 12 years in prison, was convicted for the 2012 murder of Joyce Muthoni Muriu.
He challenged the decision.
“He then lodged an appeal to the Court of Appeal at Nairobi in Criminal Appeal No 180 of 2016 against the conviction and death sentence, arguing that the High Court relied on weak circumstantial evidence, shifted the burden of proof onto him and used inadmissible DNA evidence,” the court heard.
The appeal failed, with the court holding that the circumstantial evidence “was incredibly strong and pointed irresistibly to the petitioner’s guilt”.
His sentence was later commuted to life imprisonment by the President exercising his prerogative of mercy.
Wambui appealed again.
“He is now contesting the life sentence on the grounds that it is harsh, indeterminate and violates his constitutional rights.”
He argued that an indeterminate sentence without consideration for rehabilitation was disproportionate and infringed upon his fair trial rights.
Wambui sought declarations that the commuted sentence is unconstitutional, asserting that it fails to give regard to his dignity as a human being and subjects him to inhuman and degrading treatment.
He asked the court to order that he is fit to serve a term of years considering his mitigation, or in the alternative, for revision of his case in the interest of justice.
“The petitioner urges the court to evaluate his case afresh, overturn or reconsider his sentence under current resentencing guidelines and grant him a second chance to re-join his family.“
In response, the Office of the Director of Public Prosecutions submitted that the court lacked jurisdiction to review a matter already determined by the Court of Appeal.
The respondent argued that Wambui's petition had failed the specificity test as it did not precisely show how his rights had been violated by the state.
“Counsel further submits that fundamental constitutional rights are not absolute and must be balanced against public interest and the rights of others.
“That, accordingly, the petition is an abuse of the court process due to lack of jurisdiction and failure to demonstrate constitutional violations.”
In dismissing the petition, Justice Roselyne Aburili agreed with the prosecution on the court's jurisdiction.
“...Article 165 (6) empowers the High Court to supervise subordinate courts and bodies which exercise judicial or quasi-judicial functions. However, this authority does not extend to the supervision of superior courts being the Court of Appeal and Supreme Court,” Justice Aburili stated.
Regarding the constitutionality of life imprisonment, the court cited a recent decision by the Supreme Court which held that courts do not have jurisdiction to substitute a life sentence with a term of years, as that power is reserved for Parliament.
"Article 133 having mandated the President to substitute 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."
The court further found that the petition failed to meet the specificity test for constitutional petitions.
The judge held that the petitioner was attempting to repackage issues of resentencing and the legality of a sentence as a constitutional grievance.
“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 petition was dismissed with no orders as to costs.
