Court dismiss a bid to abolish sentences beyond 67 years
National
By
Kamau Muthoni
| Aug 12, 2026
The High Court has rejected a bid to cap all jail sentences at 67 years, the normal life expectancy for Kenyans.
In her judgment, Justice Roselyne Aburili said that she had no powers to entertain the case filed by a death row convict, James Mwinga Gathuri, as his sentence was reviewed downwards to 40 years after the Supreme Court found that the mandatory death sentence was unconstitutional.
“The petitioner having already benefitted from a reduction of sentence based on the Supreme Court’s authority, he cannot now approach this Court once again to seek further redress over the same matter, albeit crafted as a constitutional petition. If courts were allowed to continually revisit or reconsider final orders and review sentences which they have rendered without a legal basis, as were the directives from the Supreme Court in Muruatetu II, there would never be finality to a proceeding,” ruled Justice Aburili.
She insisted that he could not enjoy the review twice.
Mwinga’s case, if it had been successful, would have seen the oldest prisoner in Kenya’s jails be 67 years old. He argued that it is unfair for courts to hand life or death sentences, as they exceed the normal life expectancy.
Mwinga was sentenced to death on June 3, 2014, after being found guilty of clobbering his seven- and five-year-old children to death after his wife deserted following a disagreement.
He appealed, but after the Supreme Court ruled in favour of Francis Karioko Muruatetu that a mandatory death sentence was illegal, he withdrew the appeal and instead opted for a re-sentence.
On January 22, 2024, Justice Lilian Mutende reduced the sentence but found that it was savagery for him to have turned his anger to innocent souls who were not part of his differences with his ex-wife.
She factored in a probation report which indicated that the deceased’s mother was yet to heal; she expressed unbearable pain. She also expressed fear, saying that he had issued threats while in prison.
On the flip side, his family and local administration vouched for his early release. They expressed willingness to assist him in resettling. In his mitigation, he claimed that he had undergone counselling and formal training while in prison, and they had changed his life around.
Undeterred by his freedom quest, he filed a constitutional case, arguing that the 40 years were excessive. Born on December 13, 1977, he argued that, in effect, he would be released while past the age of 77 years.
He said that the sentencing regime had violated prisoners’ rights as going beyond life expectancy amounted to degrading and inhuman punishment.
He asserted that age must be a key factor in sentencing to ensure that fixed-term sentences do not act as life sentences without hope for release.
Mwinga further argued that the 40-year sentence is a degrading punishment given Kenya’s national life expectancy profile, which was set at 67 years by the World Health Organisation (WHO) in 2018.
He sought to have the sentence further reduced by half.
The Attorney General (AG) and the Director of Public Prosecutions (DPP) did not respond to the case despite being cited as respondents.