On 7th July 2023, the Court of Appeal at Malindi in Criminal Application No.12 of 2021 – Julius Kitsao Manyeso vs. Republic, determined as follows:-
“….. the reasoning in Francis Karioko Muruatetu & Another v Republic eKLR equally applies to the imposition of a mandatory indeterminate life sentence, namely that such a sentence denies a convict facing life imprisonment the opportunity to be heard in mitigation when those facing lesser sentences are allowed to be heard in mitigation. This is an unjustifiable discrimination, unfair and repugnant to the principle of equality before the law under Article 27 of the Constitution.” Further, that “…..an indeterminate life sentence is in our view also inhumane treatment and violates the right to dignity under Article 28,……an indeterminate life sentence without any prospect of release or a possibility of review is degrading and inhuman punishment, and that it is now a principle in international law that all prisoners, including those serving life sentences, be offered the possibility of rehabilitation and the prospect of release if that rehabilitation is achieved.” [Emphasis added]
The initial matter commenced in the Magistrates Court at Malindi in Criminal Case No. 64 of 2013 where Honourable Justice Gicheha found the accused (Appellant) guilty of defilement and sentenced him to life imprisonment. Dissatisfied, the Appellant appealed his conviction and sentencing to the High Court at Malindi in Criminal Appeal No.60 of 2018 on a myriad of grounds including that; the charge was defective, the actual age of the victim was not proved beyond reasonable doubt, the Appellant was underage at the time of the alleged offence, and the defence of the Appellant was not considered.
Through a judgment delivered on 14th May 2020, Honourable Justice R Nyakundi found that the Appellant had been convicted on overwhelming evidence and consequently upheld the sentencing of the Appellant. Aggrieved, the determination of the High Court naturally gave rise to the proceedings before the Court of Appeal being Criminal Application No.12 of 2021 – Julius Kitsao Manyeso vs. Republic.
Three (3) concise grounds of appeal were placed before the Honourable Bench comprising of Honourable Justice P. Nyamweya, Honourable Justice J Lessit and Honourable Justice G.V Odunga, for consideration. These grounds were: –
- That the learned judge erred in failing to consider that the Appellant was denied his right to information (witness statements) disclosure prior to taking plea in contravention of Article 50 of the Constitution.
- That the learned judge erred in failing to consider that the Appellant was denied his right to legal representation in contravention of Article 50 of the Constitution and section 43 of the Legal Aid Act; and
- That the learned judge erred in failing to consider that the legal provision for mandatory life sentence under section 8 (2) of the Sexual Offences Act denies the judicial officer their legitimate jurisdiction to exercise discretion in sentencing, in contravention of Articles 27 and 28 of the Constitution.
Upon a review of the Court record, the Bench dismissed the Appellant’s first and second grounds of appeal, holding that as a matter of fact the Appellant’s right to information and legal representation had not been violated.
However, on the final ground of appeal, the Appellant posited that Section 8 (2) of the Sexual Offences Act provides for a mandatory life sentence that forces the trial Court to impose a sentence predetermined by the legislature. Further, that the said coercion, is a contravention of the doctrine of separation of powers between the Judiciary and Parliament pursuant to Article 160 (1) of the Constitution and thereby depriving the Trial Court of sentencing discretion.
Persuaded by the argument of the Appellant, the Court of Appeal first recognized that the Supreme Court in Francis Karioko Muruatetu & another v Republic  eKLR clarified that the unconstitutionality of mandatory sentences is limited to mandatory death sentences imposed on murder convicts pursuant to Section 204 of the Penal Code. Still, the Court of Appeal proceeded to affirm that in its view, the reasoning of the Supreme Court in Francis Karioko Muruatetu (supra) applied and extended to the imposition of a mandatory indefinite life sentence.
The Court reasoned that the imposition of a mandatory indefinite life sentence, denies a convict facing life imprisonment the opportunity to be heard in mitigation while convicts facing lesser sentences are granted the right to mitigate. This denial is unjustifiable discrimination, unfair and repugnant to the principle of equality as enshrined under Article 27 of the Constitution. Further, an indeterminate life sentence is inhumane treatment and violates the right to dignity under Article 28. It is now a principle in international law that all prisoners, including those serving life sentences, be offered the possibility of rehabilitation and the prospect of release if that rehabilitation is achieved.
The Court of Appeal, noted that the question of whether indeterminate life sentence is unconstitutional, was raised in Francis Karioko Muruatetu (supra). However, because the said question had not been raised nor addressed in the two courts below, the Supreme Court found that the question was not available for determination by the Court. Nevertheless, the Supreme Court observed that the conundrum that the Kenyan legal framework faces on this subject is that the term life imprisonment has not been defined under Kenyan law. In turn, there has not been a specification of the period of the life sentence that ought to be served by an individual before the person can be considered for parole. The Supreme Court determined that this mandate rests with the legislature pursuant to Article 51 of the Constitution.
The decision of the Court of Appeal follows that of the High Court of 17th February 2022 in JMR v Republic  eKLR where Honourable Justice Ali Aroni determined that it is unconstitutional for juveniles to be held and sentenced to serve “at the pleasure of the President”. The Court determined that such a sentence amounted to an indefinite imprisonment and thus ordered the immediate release of the Appellant.
It follows that the prevailing legal position on sentencing within the Republic of Kenya, is that mandatory indefinite sentences for juveniles and adults alike is unconstitutional.