Certain judges – a considerable number of them – deserve credit for their efforts, not all successful, to make the sentencing regime more reasonable /FILEI thought of this first as an effort of the Judiciary. But the judges can do nothing unless cases come to court. Interestingly, as the Indian courts, especially the Supreme Court, were developing pubic interest litigation, judges sometimes instituted cases themselves, or at least nudged lawyers to do so.
This has not happened in Kenya. We must recognise the important role played by individuals and agencies bringing public interest cases before the courts.
And people who bring their own appeals to the higher courts – and their lawyers – play an important part in clarifying or even changing the law for others as well. The same is true of lawyers for the other side – the offices of the DPP and the Attorney General. It is disappointing if they hardly seem to care about arguing the case fully. The best judgments depend on the fullest arguments being raised on both sides.
The death penalty
The first official draft constitution - in 2002 – said “The death penalty is abolished.” This did not survive, but there remains a lot of uneasiness about the state killing people, complicated by the fact that this is actually a sort of con trick on the person convicted because no one has actually been executed (killed) for almost 40 years.
Efforts to persuade the courts that the death penalty is always unconstitutional have never been successful. Courts may hold that it is not necessarily cruel and inhuman.
Or they may take the view that the death penalty is preserved by the Constitution in Article 26(3), which says that killing someone deliberately is not allowed “except to the extent authorised by the constitution or other written law”.
This is an example of an old fashioned and unsatisfactory style of drafting human rights: inviting Parliament to permit something that is not generally allowed.
In 2017 the Supreme Court did hold that it was unconstitutional for the death penalty to be automatic for murder (Muruatetu case). The AG and DPP were not opposing this outcome.
The court’s central reason was that a fair trial was impossible at the stage of sentencing if the person convicted could not meaningfully present reasons for their being sentenced to anything less than death (mitigation).
Murder may be committed in many ways, for many reasons, by people in very different circumstances and may sometimes lead to the sentence of death being excessive. And treating people tried for murder differently from people tried and convicted for other offences is a violation of equality.
Treating everyone convicted of murder as if they are no different from each other, is a violation of their dignity.
The only issue before the court, as it emphasised, was the constitutionality of the mandatory nature of the death penalty – not of a death penalty as such.
Robbery with violence
Robbery with violence, and even attempted robbery are the other main offences for which, under the Penal Code, the death penalty is compulsory. Encouraged by the Muruatetu case, judges held in many cases that that penalty is no longer compulsory for robbery.
In 2024 one Wanga had been sentenced to death by the magistrate for robbery with violence, but the High Court and then the Court of Appeal used the Muruatetu approach to hold that death was unconstitutional, and sentenced him to 30 years.
He then appealed to the Supreme Court which said it could not deal with it because it did not raise a constitutional issue. Having said that the court proceeded to say that lower courts were wrong to sentence Wanga to anything other than death because its Muruatetu decision affected only sentencing for murder. But they could not change the sentence in Wanga’s case.
In 2025 another judge held that death was unconstitutional in robbery with violence cases. Basically, judges are ignoring the Supreme Court’s statement about Muruatetu. I believe they are right to do so.
A higher court’s reasoning may be legitimately used by later courts for other situations. The highest British court in 1942 decided that the manufacturer of a drink that was harmful was liable to the consumer.
Later courts appropriately applied the 1942 case reasoning to other situations – developing the law of negligence that applies, for example, to negligent driving or professional advice, or medical treatment. It’s how the law develops.
The decision of a higher court is binding on lower courts if indeed it was a decision on an issue that it had to decide. The Supreme Court was wrong to try to restrict the application of its Muruatetu reasoning to other situations that were not before it.
The Sexual Offences Act
This Act imposes fixed life imprisonment for anyone who defiles a child under 12, and two minimum sentences: 15 years for someone whose victim was between 16 and 18, and 20 years for one whose victim was aged 12-16.
While some courts have refused to disturb the fixed life sentence, others have held that the same arguments as were applied in Muruatetu apply to fixed life sentences.
Courts were unhappy about the minimum sentences before 2017, particularly where a young man had a fully reciprocated relationship with a girl only a few years younger, but under 18 – dooming him, if convicted, to prison.
Muruatetu gave the Kenyan courts their chance. The High Court and Court of Appeal in many cases insisted that the Muruatetu reasoning meant they could adjust the sentence according to the facts of the case including the extent of the man’s fault.
The same approach has been used for the (fairly rare) case of minimum sentences for other offences – such as under the Energy Act (by Justice Majanja).
Judges were beginning to believe that this approach was the norm, when one of the minimum sentence cases reached the Supreme Court. That court refused to accept that minimum sentences under the Sexual Offences Act are unconstitutional and insisted that this was an issue for Parliament (Ayako case).
A disturbing issue was the presence on the bench of Justice Njoki Ndung’u who could hardly appear impartial, having as an MP sponsored the Sexual Offences Bill.
The problem with life sentences
Generally, in Kenya “life” has meant life. While people sentenced to fixed terms should be able to benefit – if they are well behaved prisoners – from the Prison Rules that provides for “remission” of up to one third of a sentence, this does not apply to those serving life sentence. Courts have refused to hold this unconstitutional.
So “lifers” can be released only by the President on the recommendation of the Power of Mercy Advisory Committee (Article 133). The number of lifers applying has been increasing. But there is no real reason why the usual rules about remission should not apply generally to lifers.
Recently, however, courts have been persuaded that whole life sentences are wrong and indeed unconstitutional – cruel and inhuman. The Court of Appeal reviewed what other countries do and decided that life imprisonment should translate to 30 years. Another court fixed it as 40 years.
When the case on 30 years came to the Supreme Court it held that this was something that should be dealt with Parliament not the courts – maybe correctly this time.
Now the Penal Code (Amendment) Bill before Parliament says imprisonment for life means for 30 years. There may remain problems - such as should it be possible for a court to order a longer sentence or some other procedure for a particularly dangerous prisoner?
Conclusion
Certain judges – a considerable number of them – deserve credit for their efforts, not all successful, to make the sentencing regime more reasonable and humane. As do those parties and lawyers who have raised the issues before the courts. The Supreme Court has been a bit of a disappointment.
