High Court Judge Roselyn Aburili has dismissed a petition by death-row convict James Mwinga Gathuri seeking to have his 40-year prison sentence reduced, after arguing that jail terms exceeding Kenya’s normal life expectancy amount to degrading punishment. Gathuri, who was convicted of murder and initially sentenced to death, had asked the High Court to reduce his 40-year sentence to 20 years, arguing that the term could keep him behind bars beyond the normal life expectancy of a Kenyan. The convict told the court that he was born on December 13, 1977 and was 37 years old when he was sentenced in 2014. He argued that serving the full 40 years would effectively keep him in prison until the age of 77, exceeding the approximately 67-year life expectancy in Kenya that he relied on in his petition.
Gathuri argued that a sentence extending beyond the average human life expectancy amounted to degrading punishment and violated his constitutional rights to human dignity, equality and equal protection of the law. He further argued that age should be considered when determining prison terms so that fixed sentences do not effectively become life imprisonment without a realistic prospect of release.
However, Justice Aburili dismissed the petition, finding that the High Court had already exercised its jurisdiction over Gathuri’s sentence. Gathuri was convicted of murder under Sections 203 and 204 of the Penal Code in Milimani High Court Criminal Case No. 10 of 2010 and sentenced to death on June 3, 2014. He later withdrew his appeal at the Court of Appeal and pursued resentencing following the Supreme Court’s decision in Francis Karioko Muruatetu & Another v Republic. The High Court subsequently resentenced him to 40 years imprisonment in Criminal Petition No. E282 of 2020, replacing the death sentence.
In rejecting his latest petition, Justice Aburili said Gathuri had already benefited from the resentencing window created by the Supreme Court’s Muruatetu jurisprudence. The judge explained that the Supreme Court’s directions allowed prisoners serving mandatory death sentences for murder to return to the High Court for resentencing, with the court required to consider both aggravating and mitigating circumstances, including the offender’s age, character, remorse, possibility of reform and the circumstances surrounding the offence.
According to Justice Aburili, once the High Court substituted Gathuri’s death sentence with a 40-year term, it became functus officio and could not reopen the matter in the absence of a legal basis allowing it to do so. “Once that substitute sentence was rendered, the Court exhausted its statutory and constitutional jurisdiction regarding the resentencing of the Petitioner,” the judge held.
Justice Aburili further found that the petition was essentially an attempt to obtain a second review of a sentence that had already been reconsidered. She said that if Gathuri was dissatisfied with the 40-year sentence imposed during resentencing, his proper legal avenue was to appeal to the Court of Appeal rather than return to the High Court through a constitutional petition. The judge cited the 2023 NCAJ Sentencing Policy Guidelines, which provide that an offender has a right to appeal a resentencing decision to a higher court.
Gathuri had told the court that he was unaware that he could appeal the 40-year sentence and had opted for the constitutional petition instead. Justice Aburili warned that allowing convicts who had already benefited from Muruatetu resentencing to repeatedly return to the High Court seeking further reductions would undermine the finality of judicial decisions. “To allow convicts to repeatedly petition the High Court for further reductions of sentence after already benefiting from Muruatetu II resentencing would create endless litigation, subvert the finality of judicial decisions and lead to an abuse of the court process,” the judge stated.
The court consequently dismissed Gathuri’s petition, declining to reduce his 40-year prison term to 20 years. The petition was dismissed with no orders as to costs, and the file was closed.
The judgment was delivered virtually in Nairobi on August 3, 2026.
