1.The two applicants Ekiru Ikul alias Engurangor and Ekure Napetet are held in custody on a sentence of death imposed by the High Court of Kenya at Lodwar upon being convicted of the offence of murder contrary to section 203 of the Penal Code. Their appeal against both conviction and sentence was dismissed by this Court (Githinji, Okwengu and J. Mohammed, JJA.) on 28th June, 2019.
2.That should have been the end of the matter but, alas, by an application by motion on notice dated 3rd September, 2019 and filed by their advocate Kaira Nabasenge, they pray in the main, for an order that;The motion lists on its face some 9 grounds which are of doubtful relevance save, perhaps, No. 5 which states;
3.The supporting affidavit purported to be sworn by the applicants jointly is no more than a repetition of the said grounds. At paragraphs 9 and 10 they depose as follows;
5.In written submissions filed by Ms. Emma Mkok, learned prosecution counsel for the Director of Public Prosecutions, the motion is expressly “conceded on grounds that it is merited.” The submissions also cite the Hermannus Steyn (Supra) and Malcolm Bell(Supra)cases for the applicable principles. At the hearing of the motion, Mr. Nabasenge did not highlight his submissions. Ms. Okok on the other hand repeated the concession and went on to address us thus;So, there, it seems, is the quest that counsel before us wish to have the Supreme Court pronounce itself on.
6.Does the death sentence per se, without any indication of what of, and what about, it, in and of itself, without more, amount to a matter of general public importance properly-understood and as “identified in their essence” by the Supreme Court in Phillips Steyn (supra)? With respect to both counsel who appeared before us, we do not think so. The Supreme Court in Malcolm Bell (supra) reiterated what had been distilled in the previous cases thus;
7.Viewed against that template from the apex court, we have no hesitation finding that this motion fails the test, and spectacularly so. We see in the application no more than a bit of legal adventurism devoid of substance.
8.Other than the patent lack of precision and specificity on what exactly the applicants wish the Supreme Court to explore regarding the death sentence, it is clear that the question in all its lack of clarity, was never raised and answered at the High Court and before this Court at the hearing of the appeal so as to warrant the input of the Supreme Court. It is worth restating that the apex court itself stated in Peter Ngoge -vs- Francis Ole Kaparo & 5 others  eKLR,
9.We are not persuaded that there is anything novel or of jurisprudential moment emanating from the Courts’ dicta on this applicants’ appeal that four people lost their lives. That was an established fact and the Courts’ consideration of it, alongside other matters, in affirming the death sentence meted on the applicants, was a proper consideration of the principles of sentencing which require no further elucidation by the Supreme Court.
10.We recall that the apex court had already engaged with the limited and specific question of the constitutionality of the mandatory nature of the death sentence in Muruatetu (supra).That court did not therein proscribe the death sentence per se.
11.All said, and notwithstanding the respondents’ concession in this matter, which is not binding on us, and which we think in the present case to be misconceived, we find the motion before us to be devoid of merit. It is accordingly dismissed in its entirety.
DATED AND DELIVERED AT KISUMU THIS 25TH DAY OF MARCH, 2022.P. O. KIAGE.....................................JUDGE OF APPEALM. MBOGHOLI.....................................JUDGE OF APPEALF. TUIYOTT.....................................JUDGE OF APPEALI hereby certify that this is a true copy of the original.DEPUTY REGISTRAR