Francis Karioko Muruatetu & another v Republic [2017] eKLR

REPUBLIC OF KENYA

IN THE SUPREME COURT OF KENYA

(CORAM: MARAGA CJ & P, MWILU DCJ &VP, OJWANG, WANJALA, NJOKI AND
LENAOLA SCJJ.)

PETITION NO. 15 OF 2015

(AS CONSOLIDATED WITH PETITION NO 16 OF 2015)

BETWEEN

FRANCIS KARIOKO MURUATETU ..........1ST PETITIONER

WILSON THIRIMBU MWANGI……...........2NDPETITIONER

AND

REPUBLIC…………………….…..................RESPONDENT

KATIBA INSTITUTE………….….............…..AMICII CURAII

DEATH PENALTY PROJECT KENYA NATIONAL

COMMISSION ON HUMAN RIGHTS

INTERNATIONAL COMMISSION OF JURISTS-KENYA CHAPTER

LEGAL RESOURCES FOUNDATION

ATTORNEY GENERAL

(Being an appeal from the Judgment of the Court of Appeal sitting in Nairobi (E.O.
O’Kubasu, P.N. Waki & J.W. Onyango Otieno JJ.A) delivered on delivered on 11th July, 2014
in Civil Appeal No. 93 of 2014)

JUDGMENT

A. INTRODUCTION

[1] This appeal raises a fundamental legal issue that has engaged many global jurisdictions in
seemingly unending controversy: whether or not the mandatory death penalty is
unconstitutional.

[2] The petitioners and others were arraigned before the High Court (Mbogholi Msagha J.)
for the offence of murder. Upon their conviction, they were sentenced to death as decreed by
Section 204 of the Penal Code. Their appeal to the Court of Appeal against both that

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conviction and sentence was dismissed. Aggrieved by that decision, they filed two separate
appeals in this Court which have since been consolidated.

[3] Messrs. Ngatia and Kilukumi represented the 1st and 2nd petitioners respectively. Upon
their applications, the Death Penalty Project; the Kenya National Commission on Human
Rights (KNCHR); the Kenya Section of the International Commission of Jurists (ICJ- Kenya);
the Legal Resources Foundation; and the Katiba Institute as well as the Attorney General
were all admitted in this matter as amicii curiae.

[4] The gravamen of petitioners’ appeal is that the mandatory death sentence imposed upon
them and the commutation of that sentence by an administrative fiat to life imprisonment are
both unconstitutional and therefore null and void. In the circumstances, the petitioners are
entitled to damages the quantum of which this Court should assess.

[5] On 3rd March 2016, this Court (Mutunga CJ & P, Rawal DCJ & VP, Tunoi, Ibrahim,
Ojwang, Wanjala, Njoki SCJJ) heard the appeals to completion and reserved their judgment
for delivery a later date. However, before the judgment could be delivered, Mutunga CJ & P,
Rawal DCJ & P and Tunoi SCJ retired from the Court necessitating the hearing of the matter
de novo before this bench.

B. SUBMISSIONS OF PARTIES

i. Petitioners.

[6] The petitioners’ case, presented to us by Mr. Ngatia for the 1st petitioner and Mr.
Kilukumi for the 2nd petitioner, is that the mandatory nature of the death penalty under
Section 204 of the Penal Code jettisons the discretion of the trial forcing it to hand down a
sentence pre-determined by the Legislature thus fouling the doctrine 0f separation of powers.
They submitted that the sentencing process is part of the right to a fair trial enshrined in
Article 50(2) of the Constitution. They contended that the mandatory death penalty under
Section 204 of the Penal Code, violated that right in that it denied the trial Judge discretion in
sentencing.

[7]The petitioners further contended that Article 50 (2) (q) of the Constitution entitles any
person who has undergone a criminal trial to appeal or seek a review from a higher Court.
This includes a second appeal. However, as Section 261 of the Criminal Procedure Code
limits second appeals to convictions only, if not set aside by the first appellate court, the
mandatory nature of the death sentence therefore violates the convicts’ rights to a fair hearing
under Article 50 (2) (q) of the Constitution.

[8] Besides The petitioners relied on Articles 1(1), 1 (3), 2(4), 19(3), 201(1), 25, 26 (1), 27
(1), 28, 29, 50(2), 159 (1), 160 (1), the petitioners relied on a number of authorities in case
law, including the decision in Patrick Reyes v the Queen [2002] 2 App. Case 235 (Reyes) in
support of submissions. Like in this appeal, the Privy Council was called upon to consider the
mandatory death sentence imposed on the appellant upon his conviction for the offence of
murder. It unanimously quashed Reyes's death sentence. In reaching that conclusion, the
Privy Council cited with approval the 1989 House of Lords Select Committee’s Report on
Murder and Life imprisonment which had concluded that murders differ so greatly from each
other and as such it is wrong to prescribe the same punishment for all murders and the
observation of the Inter-American Commission that the mandatory imposition of the death
sentence is unconstitutional as it disregarded an offender’s personal circumstances thus
robbing him of personal dignity.

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[9] The Privy Council also referred to decisions of other courts. The first one was the US
Supreme Court decision in Woodson v The State of North Carolina (Woodson) (1976) 428
US 280 in which it had been held that a statute that prescribes a mandatory sentence on
conviction has the effect of ‘treating all persons convicted of a designated offense not as
uniquely individual human beings, but as members of a faceless undifferentiated mass to be
subjected to the blind infliction of the penalty of death’. The second authority was another US
Supreme Court decision in Robertson v Louisiana (1977) 431 US 633 which declared a
statute that prescribed the mandatory death penalty on conviction of certain classes of murder
as unconstitutional. The third decision was that of the Indian Supreme Court in Mithu v State
of Punjab [1983] 2 SCR 690 (Mithu) which had held that a standardized mandatory death
sentence that excludes the involvement of the judicial mind fails to take into account the facts
and circumstances of each particular case and must therefore be stigmatized as arbitrary and
oppressive .

[10] The petitioners also relied on the cases of Susan Kigula and 416 others v AG 2005
Constitutional Petition Number 6 of 2003 (Kigula) in which the Ugandan Supreme quashed
the mandatory death penalty imposed upon the appellant in that case as unconstitutional and
remitted the case to the High Court for resentencing and the decision of the Constitutional
Court of Malawi in Francis Kafantayeni & 5 Others v the Attorney General [2007]
MWHC1, 9. (Kafantayeni) that sentencing was a legal issue that formed part of the principle
of fair trial and required judicial determination in the course of a trial and could not be
achieved by a legislative fiat. In the circumstances, the imposition of the mandatory death
sentence which denied the convicted person an opportunity to seek review from a higher
Court amounted to inhuman treatment or punishment.

[11] The petitioners in further support of their arguments cited the Court of Appeal decision
in Godfrey Ngotho Mutiso v R, Cr. App No. 17 of 2008 (Mutiso case), in which the Court of
Appeal appreciated that a uniform sentence deprives the Courts from considering mitigating
circumstances and fails to appreciate that sometimes there may be unequal participation in a
crime which would result to different charges and sentences on the accused persons.

[12] The petitioners urged this Court to overturn the Court of Appeal decision in Mwaura &
2 others v R, Criminal Appeal, No. 5 of 2008 (Mwaura) that the death penalty is grounded
in the Constitution as bad law. They urged this Court to find that the Appellate Court grossly
erred by failing to find that the mandatory nature of the death sentence set out in Section 204
of the Penal Code is unconstitutional. Contending that only a valid sentence in law can be
commuted by the President of the Republic, counsel for the petitioners dismissed the
commutation of the petitioners’ death sentence to life imprisonment as untenable given that
the mandatory death sentence imposed upon them was unconstitutional. Consequent upon
those findings, the petitioners prayed the mandatory death sentence which has since been
commuted to life imprisonment be set aside and the be set free; a definite term of
imprisonment, subject to the applicable remission rules, be meted out to them or alternatively,
an order be made remitting the matter to the High Court to undertake a sentence hearing for
the purpose of determining an appropriate definite sentence.

[13] Describing their incarceration for 17 years in the segregated death row as agonizing,
they urged this Court to find that they are entitled to compensation for that unconstitutional
detention and proceed to assess the quantum thereof.

[14] The petitioners did not stop there. They urged that this Court’s declaration that the
mandatory death sentence prescribed by Section 204 of the Penal Code is unconstitutional and
the consequent award of damages for that illegality should apply to all convicts suffering the
same fate.

ii. Respondent
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[15] Relying on the State's written submissions dated 26th February 2016, Mr. Nderitu for the
Director of Public Prosecutions (DPP), the respondent, submitted that as is clear from Article
26 of our Constitution, the right to life is not absolute. Under our Penal Code, the death
penalty is a lawful, though not the only sentence (see the Court of Appeal Decision in the
Mutiso case), for the offences of treason (Section 40); oathing to commit a capital offence
(Section 60); murder (Section 204); robbery with violence (Section 296(2) and attempted
robbery with violence (Section 297(2)). He, however, conceded that the mandatory aspect of
such sentence is unconstitutional. He concurred with counsel for the petitioners that
sentencing is a judicial function. As such, under the doctrine of separation of powers, the
Legislature ought not encroach upon territory that constitutionally belongs to the Judiciary.
Counsel submitted that while conducting a trial, the court gathers valuable information
relating to the guilt or innocence of an accused person. In event of a conviction, such
information should serve as mitigating or aggravating factors in the determination of an
appropriate sentence in each case.

[16] Counsel for the respondent urged this Court to be persuaded by the recent High Court
decision (Lesiit, Kimaru, Mutuku S.N JJ) in Joseph Kaberia Kahinga and Others v The
Attorney-General, Constitutional Petition No. 680 of 2010, [2016] eKLR, which determined
that it would amount to the violation of accused persons’ right to fair trial as provided under
Article 50 (2) of the Constitution if the Court does not receive and consider mitigating
factors and other statutory and policy pre-sentencing requirements.

[17] In conclusion on that point, Mr. Nderitu once again concurred with counsel for the
petitioners that the matter be referred back to the High Court for resentencing where the
petitioners will be accorded an opportunity to put their case across; the prosecution and the
victims of the crime in this matter be fully heard; the time the appellants have spent in
custody be taken into account in determining the appropriate sentence. He urged this Court to
set timelines for that hearing.

[18] Since the petitioners have not challenged their conviction by the High Court, Mr.
Nderitu dismissed their claim for damages as baseless. In any event, he urged, the award for
damages is a civil claim that demands a separate and distinct hearing. He termed as sweeping
and totally untenable counsel for the petitioners’ recommendation that the Court’s decision in
this matter do apply to other convicts who are not before it.

iii. Amici Curiae (Katiba Institute (KI), the Death Penalty Project (DPP),
the Kenya National Commission on Human Rights (KNCHR), the Kenyan
Section of the International Commission of Jurists (ICJ-K) and the Legal
Resources Foundation (LRF))

[19] The first five amici curiae relied on their joint written submissions dated 4th February,
2016. They submitted that the core issue in the present appeal is the compatibility of the
mandatory death penalty with the Constitution not the constitutionality of the death penalty
itself. The latter having not been in issue in this appeal, they observed that the same should be
left to another day and in an appropriate case.

[20] On Section 204 of the Penal Code, the amici curiae submitted the mandatory aspect of
the death penalty under that Section is not only inimical to international law and customs and
hence fouling Articles 2(5) & (6) of the Constitution but is also a violation of one’s
constitutional rights to be free from cruel, inhuman, and degrading treatment under Articles
29(f) and 25(a); the rights to a fair trial under Articles 50(1) and (2) and 25(c); the doctrine of
separation of powers articulated in Chapters 9, 10, and 11 of the Constitution; and the
authority and independence of the Judiciary under Articles 159 and 160. Citing the cases of
Attorney Gen v Kigula, et al [2009] UGSC 6, Kafantayeni v Attorney Gen[2007] MWHC 1,
9, Reyes v R (Belize) [2002] 2 AC 35, Bachan Singh v State of Punjab 2 SCC 475, Mithu v
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State of Punjab 2 SCR 690, Woodson v North Carolina (1976) 428 US 280, Hughes v R
(Saint Lucia), 2002 2 AC 259, Simmons &Anor v R Rev 1 (Bahamas) [2006] UKPC 19,
Jones v the Queen (The Bahamas) [2006] UKPC 43, Bowe (Junior) &Anor v R Rev 1
(Bahamas) [2006] UKPC 10, Boucherville v The State of Mauritius (Mauritius)[2008]
UKPC 37, Fox v R (Saint Christopher and Nevis) [2002] 2 AC 284, Boyce & Anor V R
(Barbados) [2005] 1 AC 400, the rest of the submissions of counsel for the amici curiae
echoed those presented for the petitioner that the mandatory death sentence robbed the
offender an opportunity for an individualized sentence that took into consideration factors
relating to the offender; prohibits the offender from presenting mitigating evidence to the
Court thereby depriving the offender of his right to a fair trial under Article 25 (c) of the
Constitution; and that, contrary to the doctrine of separation of powers, it prevents the Court
from exercising its discretion in sentencing thus leaving it to Parliament to control sentences
in all murder cases.

[21] On damages, the amici curiae asserted that even though their trial had been concluded
and death sentences were imposed upon them under the former Constitution, the appellants’
petitions addressed a continuing violation of their fundamental rights and were therefore
entitled to a remedy for a breach of their constitutional rights.

[22] As regards the commutation of the petitioners’ sentences to life imprisonment, the amici
submitted that did not affect their entitlement to challenge the constitutionality of the
mandatory death sentence imposed upon them. They urged this Court to find that only a
lawful sentence could be commuted.

[23] In conclusion, the amici curiae urged this Court to be guided by experience from other
jurisdictions especially Uganda and Malawi, where the mandatory death penalty has most
recently been abolished and declare the mandatory nature of the life sentence under Section
204 of the Penal Code unconstitutional and remit the matter to the High Court for
resentencing.

iv. Amicus Curiae; the Attorney General.

[24] The Attorney General relied on his written submissions dated 25th March, 2016 and
submitted that under section 71 (1) of the repealed Constitution, the mandatory death sentence
was, at the time it was imposed on the petitioners, expressly legal and constitutional. He,
however, asserted that under the current Constitution, it unconstitutional not because it is
cruel, inhuman and degrading, but because it compromised the right to a fair trial. That being
the case and since the current Constitution has no retrospective application, the Attorney
General urged that the petitioners were not entitled to challenge the constitutionality of the
mandatory death sentence. At any rate, he further submitted, death sentence having been
commuted to life imprisonment by the President, it was otiose to challenge its legality. He
therefore dismissed the petitioners’ the prayer that the matter be referred back to the High
Court for resentencing.

E. ISSUES FOR DETERMINATION

[25] Having considered all the pleadings, written and oral submissions of the parties, we find
the following issues arising for determination:

a) Whether the mandatory nature of the death penalty provided for in the
Penal Code under section 204 is unconstitutional"

b) Whether the indeterminate life sentence should be declared

unconstitutional"

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c) Whether this Court can or should define the parameters of a life sentence;
and

d) What remedies, if any, accrue to the petitioners"

F. ANALYSIS

[26] We wish to make it clear from the onset that we decline to consider the wider issues
raised by Amicii curae in relation to the issues of the constitutionality of the death sentence
and an accompanying interpretation of Article 26 of the Constitution for the simple reason
that they did not arise in this appeal.

i. Violation of the right to fair trial

[27] As stated at the outset of this judgment, the constitutionality of the mandatory nature of
the death penalty has engaged many court in various jurisdiction globally. It is the major issue
in this appeal. It has also engaged the High Court and the Court of Appeal in many cases in
this country resulting in divergent opinions. It started with the Mutiso case under the repealed
Constitution in which the Court of Appeal opined that as it denied an accused person right to
fair trial in breach of Section 77 of the repealed Constitution, the mandatory death sentence
was arbitrary and unconstitutional. In their own words, the learned Judges of that Court
observed that:

" On our own assessment of the issue at hand and the material placed
before us, we are persuaded, and now so hold, that section 204 of the
Penal Code which provides for a mandatory death sentence is antithetical
to the Constitutional provisions on protection against inhuman or
degrading punishment or treatment and fair trial. We note that while the
Constitution itself recognizes the death penalty as being lawful, it does not
say anywhere that when a conviction for murder is recorded, only the
death sentence shall be imposed. We declare Section 204 shall, to the
extent it provides that the death penalty is the only sentence in respect of
the crime of murder is inconsistent with the letter and spirit of the
Constitution, which as we have said, makes no such mandatory
provision."

[28] That remained the position until the Mwaura case in which the Court of Appeal
changed it holding that by the use of the word ‘shall’ Section 204 of the Penal Code was
couched in mandatory terms leaving the court with no discretion but to impose the death
penalty. It delivered itself thus:

"We hold that the decision in Godfrey Mutiso v R to be per incuriam in so far
as it purports to grant discretion in sentencing with regard to capital
offences.”

[29] Though some High Court Judges, notably Muya J. in Republic v Abduba Guyo Wada
Criminal Case No. 7 of 2013 [2015] eKLR, have questioned the propriety of the Mwaura
decision, they have nonetheless deferred to the doctrine of stare decisis and followed it. The
High Cort decisions in Jackson Maina Wangui & another v Republic, Criminal Case No. 35
of 2012 [2014] eKLR; Republic v Thomas Kipkemoi Kipkorir & 2 others Criminal Case No.
29 of 2012 [2016] eKLR; Republic v Dickson Mwangi Munene & Another Criminal Case
No. 11 of 2009 [2011] eKLR; Republic v Jared Nyakundi Ratemo & 3 others Criminal Case
No. 55 0f 2009 [2016] eKLR; and Republic v Eric Mutua Daniel Criminal Case No. 30 of
2012, [2016] eKLR are but a few illustrations which speak to this point.

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[30] The overarching position flowing from the Mwaura case is that the couching Section
204 of the Penal Code with mandatory word ‘shall’ gives trial judges no option or discretion
to mete out any other sentence save the death penalty. Some Kenyan courts have even
observed that mitigating factors in such cases were at best, superfluous in terms of the
sentence provided. It therefore serves no purpose for the trial judges to hear mitigating factors
from convicts in such cases.

[31] On the international arena, however, most jurisdictions have declared not only the
mandatory but also the discretionary death penalty unconstitutional. In Roberts v. Louisiana,
431 U.S. 633 (1977) a Louisiana statute provided for the mandatory imposition of the death
sentence. Upon challenge, the US Supreme Court declared it unconstitutional since the statute
allowed for no consideration of particularized mitigating factors in deciding whether the death
sentence should be imposed. In Reyes (above), the Privy Council was of the view that a
statutory provision that denied the offender an opportunity to persuade the Court why the
death sentence should not be passed, denied such an offender his basic humanity. And in
Spence v The Queen; Hughes v the Queen (Spence & Hughes) (unreported, 2 April 2001)
where the constitutionality of the mandatory death sentence for the offence of murder was
challenged, the Privy Council held that such sentence did not take into account that persons
convicted of murder could have committed the crime with varying degrees of gravity and
culpability. In the words of Byron CJ;

“In order to be exercised in a rational and non-arbitrary manner, the

sentencing discretion should be guided by legislative or judicially-
prescribed principles and standards, and should be subject to effective
judicial review, all with a view to ensuring that the death penalty is
imposed in only the most exceptional and appropriate circumstances.
There should be a requirement for individualized sentencing in
implementing the death penalty.”

[32] Two Indian decisions also merit mention. In Mithu v State of Punjab, Criminal Appeal
No. 745 of 1980, the Indian Supreme Court held that “a law that disallowed mitigation and
denied a judicial officer discretion in sentencing was harsh, unfair and just” while in Bachan
Singh v The State of Punjab (Bachan Singh) Criminal Appeal No. 273 of 1979 AIR (1980)
SC 898, it was held that “It is only if the offense is of an exceptionally depraved and heinous
character, and constitutes on account of its design and manner of its execution a source of
grave danger to the society at large, the Court may impose the death sentence.”

[33] The UN United Human Rights Committee has also had occasion to consider the
mandatory death penalty. In case of Eversley Thomson v St. Vincent, Communication No.
806/ 1998U.N. Doc. CCPR/70/806/1998 (2000), it stated that such sentence constituted a
violation of Article 26 of the Covenant, since the mandatory nature of the death sentence did
not allow the judge to impose a lesser sentence taking into account any mitigating
circumstances and denied the offender the most fundamental of right, the right to life, without
considering whether this exceptional form of punishment was appropriate in the
circumstances of his or her case.

Interrogating Section 204 of the Penal Code

[34] In the light of the above positions, it falls upon this Court to bring clarity and make a
determination as to whether the mandatory nature of the death penalty under Section 204 of
the Penal Code meets the constitutional standard. The Section categorically decrees that “Any
person convicted of murder shall be sentenced to death.”

[35] To determine the matter, it is imperative to consider certain constitutional provisions in

relation to the above section.
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Article 19 (3) (a) of the Constitution provides:

“3. The rights and fundamental freedoms in the Bill of Rights

(a) belong to each and every individual and are not granted by the State.”

Articles 20 (1) and (2) of the Constitution provides that:

“(1) The Bill of Rights applies to all law and binds all state organs and all
persons.

(2) Every person shall enjoy this rights and fundamental freedoms in the
Bill of Rights to the greatest extent consistent with the nature of the right or
fundamental freedom.”

[36] Article 28 of the Constitution provides that every person has inherent dignity and the
right to have that dignity protected. Article 48 mandates the State to ensure justice for all
persons.

[37] The rights of an accused person to a fair trial is provided for under Article 50 (2) of the
Constitution. That right is absolute as it is one of the rights which cannot be limited pursuant
to Article 25(c) of the Constitution. Article 50 (1) and (2) of the Constitution provides:

“ (1) Every person has a right to have any dispute that can be resolved by
the application of law decided in a fair and public hearing before a court or
if appropriate another independent and impartial tribunal or body.

(2) Every accused person has the right to a fair trial, which includes the
right:

.......

(q) if convicted, to appeal to, or apply for review by, a higher court as
prescribed by Law."

[38] Kenya is a signatory to the International Covenant on Civil and Political Rights
(ICCPR) since May 1972. The ICCPR makes the following provisions under Article 14:

“1. All persons shall be equal before the courts and tribunals. In the
determination of any criminal charge against him, or of his rights and
obligations in a suit at law, everyone shall be entitled to a fair and public
hearing by a competent, independent and impartial tribunal established by
law...”

[39] The United Nations Commission on Human Rights has recommended the abolition of
the death sentence as a mandatory sentence in Human Rights Resolution 2005/59: “The
Question of the Death Penalty” dated 20 April 2005, E/CN.4/RES/2005/59. It urges all
States that still maintain the death penalty:

‘…(d) Not to impose the death penalty for any but the most serious crimes
and only pursuant to a final judgment rendered by an independent and
impartial competent court, and to ensure the right to a fair trial and the right
to seek pardon or commutation of sentence;

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(f) To ensure also that the notion of “most serious crimes” does not go
beyond intentional crimes with lethal or extremely grave consequences and
that the death penalty is not imposed for non-violent acts such as financial
crimes, religious practice or expression of conscience and sexual relations
between consenting adults nor as a mandatory sentence.’

[40] These constitutional provisions and those of the ICCPR bring to the fore a number of
principles. Firstly, the rights and fundamental freedoms belong to each individual. Secondly,
the bill of rights applies to all law and binds all persons. Thirdly, all persons have inherent
dignity which must be respected and protected. Fourthly, the State must ensure access to
justice to all. Fifthly, every person is entitled to a fair hearing and lastly, the right to a fair trial
is non-derogable. For Section 204 of the Penal Code to stand, it must be in accord with these
provisions.

[41] It is evident that the trial process does not stop at convicting the accused. There is no
doubt in our minds that sentencing is a crucial component of a trial. It is during sentencing
that the court hears submissions that impact on sentencing. This necessarily means that the
principle of fair trial must be accorded to the sentencing stage too.

[42] Pursuant to Sections 216 and 329 of the Criminal Procedure Code, Chapter 75, Laws of
Kenya, mitigation is a part of the trial process. Section 216 provides:

The Court may, before passing sentence or making an order against an

accused person under section 215 receive such evidence as it thinks fit in
order to inform itself as to the sentence or order to be passed or made.

Section 329 of the Criminal Procedure Code provides:

The court may, before passing sentence, receive such evidence as it thinks
fit in order to inform itself as to the proper sentence to be passed.

[43] Therefore, from a reading of these Sections, it is without doubt that the Court ought to
take into account the evidence, the nature of the offence and the circumstances of the case in
order to arrive at an appropriate sentence. It is not lost on us that these provisions are
couched in permissive terms. However, the Court of Appeal has consistently reiterated on the
need for noting down mitigating factors. Not only because they might affect the sentence but
also for futuristic endeavors such as when the appeal is placed before another body for
clemency.

[44] In Sango Mohamed Sango & another v Republic Criminal Appeal No. 1 of 2013
[2015] eKLR , Makhandia, Ouko, M’inoti JJA observed that although Sections 216 and 329
of the Criminal Procedure Code were couched in permissive terms, the Appellate Court has
held over time that it is imperative for the trial court to afford an accused person an
opportunity to mitigate and the trial court should record the mitigation factors. This applied
even when accused persons had been convicted of offences where the prescribed sentence
was death. The Appellate Court noted that the mitigating circumstances would be relevant if
the matter went on appeal or before a clemency board or with regards to the age of the
offender or pregnancy in the case of women convicts. Similar decisions can be seen in Henry
Katap Kipkeu v. Republic, CR. APP. NO. 295 OF 2008 and Dorcas Jebet Ketter & Another
v. R, CR. APP. NO. 10 OF 2012.

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[45] To our minds, what Section 204 the Penal Code is essentially saying to a convict is that
he or she cannot be heard on why, in all the circumstances of his or her case, the death
sentence should not be imposed on him or her, or that even if he or she is heard, it is only for
the purposes of the record as at that time of mitigation because the court has to impose the
death sentence nonetheless, as illustrated by the foregoing Court of Appeal decisions. Try as
we might, we cannot decipher the possible rationale for this provision. We think that a person
facing the death sentence is most deserving to be heard in mitigation because of the finality of
the sentence.

[46] We are of the view that mitigation is an important congruent element of fair trial. The
fact that mitigation is not expressly mentioned as a right in the Constitution does not deprive
it of its necessity and essence in the fair trial process. In any case, the rights pertaining to fair
trial of an accused pursuant to Article 50(2) of the Constitution are not exhaustive.

[47] Indeed the right to fair trial is not just a fundamental right. It is one of the inalienable
rights enshrined in Article 10 of the Universal Declaration of Human Rights, and in the same
vein Article 25(c) of the Constitution elevates it to a non-derogable right which cannot be
limited or taken away from a litigant. The right to fair trial is one of the cornerstones of a just
and democratic society, without which the Rule of Law and public faith in the justice system
would inevitably collapse.

[48] Section 204 of the Penal Code deprives the Court of the use of judicial discretion in a
matter of life and death. Such law can only be regarded as harsh, unjust and unfair. The
mandatory nature deprives the Courts of their legitimate jurisdiction to exercise discretion not
to impose the death sentence in appropriate cases. Where a court listens to mitigating
circumstances but has, nonetheless, to impose a set sentence, the sentence imposed fails to
conform to the tenets of fair trial that accrue to accused persons under Articles 25 of the
Constitution; an absolute right.

[49] With regard to murder convicts, mitigation is an important facet of fair trial. In Woodson
as cited above, the Supreme Court in striking down the mandatory death penalty for murder
decried the failure to individualize an appropriate sentence to the relevant aspects of the
character and record of each defendant, and consider appropriate mitigating factors. The
Court was of the view that a mandatory sentence treated the offenders as a faceless,
undifferentiated mass to be subjected to the blind infliction of the penalty of death thereby
dehumanizing them.

[50] We consider Reyes and Woodson persuasive on the necessity of mitigation before
imposing a death sentence for murder. We will add another perspective. Article 28 of the
Constitution provides that every person has inherent dignity and the right to have that dignity
protected. It is for this Court to ensure that all persons enjoy the rights to dignity. Failing to
allow a Judge discretion to take into consideration the convicts’ mitigating circumstances, the
diverse character of the convicts, and the circumstances of the crime, but instead subjecting
them to the same (mandatory) sentence thereby treating them as an undifferentiated mass,
violates their right to dignity.

[51] The dignity of the person is ignored if the death sentence, which is final and irrevocable
is imposed without the individual having any chance to mitigate. We say so because we
cannot shut our eyes to the distinct possibility of the differing culpability of different
murderers. Such differential culpability can be addressed in Kenya by allowing judicial
discretion when considering whether or not to impose a death sentence. To our minds a
formal equal penalty for unequally wicked crimes and criminals is not in keeping with the
tenets of fair trial.

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[52] We are in agreement and affirm the Court of Appeal decision in Mutiso that whilst the
Constitution recognizes the death penalty as being lawful, it does not provide that when a
conviction for murder is recorded, only the death sentence shall be imposed. We also agree
with the High Court's statement in Joseph Kaberia Kahinga that mitigation does have a place
in the trial process with regard to convicted persons pursuant to Section 204 of the Penal
Code. It is during mitigation, after conviction and before sentencing, that the offender's
version of events may be heavy with pathos necessitating the Court to consider an aspect that
may have been unclear during the trial process calling for pity more than censure or on the
converse, impose the death sentence, if mitigation reveals an untold degree of brutality and
callousness.

[53] If a Judge does not have discretion to take into account mitigating circumstances it is
possible to overlook some personal history and the circumstances of the offender which may
make the sentence wholly disproportionate to the accused's criminal culpability. Further,
imposing the death penalty on all individuals convicted of murder, despite the fact that the
crime of murder can be committed with varying degrees of gravity and culpability fails to
reflect the exceptional nature of the death penalty as a form of punishment. Consequently,
failure to individualise the circumstances of an offence or offender may result in the
undesirable effect of 'overpunishing' the convict.

[54] A fair trial has many facets, and includes mitigation and, the right to appeal or apply for
review by a higher Court as prescribed by law. Counsel for the petitioners and amici curiae
both urged that the mandatory death sentence denied the petitioners enjoyment of their rights
under Article 50 (2) (q) of the Constitution. On this issue, we are persuaded by the decision in
Edwards v The Bahamas (Report No. 48/01, 4th April 2001) which was decided by the Inter-
American Commission on Human Rights. In that matter, Michael Edwards was convicted of
murder and a mandatory death sentence imposed on him.

[55] He petitioned the Inter-American Commission on Human Rights. He challenged the

mandatory death penalty on the basis, inter alia, that his rights to equality before the law and
a fair trial enshrined in the American Declaration of the Rights and Duties of Man had been
violated. The Commission held at paragraph 137:

" ...Moreover, by reason of its compulsory and automatic application, a

mandatory death sentence cannot be the subject of review by a higher court.
Once a mandatory sentence is imposed, all that remains for a higher court to
review is whether the defendant was found guilty of the crime for which the
sentence is mandated."

[56] We are therefore, in agreement with the petitioners and amici curiae that Section 204
violates Article 50 (2) (q) of the Constitution as convicts under it are denied the right to have
their sentence reviewed by a higher Court – their appeal is in essence limited to conviction
only. There is no opportunity for a reviewing higher court to consider whether the death
sentence was an appropriate punishment in the circumstances of the particular offense or
offender. This also leads us to find that the right to justice is also fettered. Article 48 of the
Constitution on access to justice provides that:

“The State shall ensure access to justice for all persons and, if any fee is
required, it shall be reasonable and shall not impede access to justice.”

[57] The scope of access to justice as enshrined in Article 48 is very wide. Courts are
enjoined to administer justice in accordance with the principles laid down under Article 159
of the Constitution. Thus, with regards to access to justice and fair hearing, the State through
the courts, ensures that all persons are able to ventilate their disputes. Access to justice
includes the right to a fair trial. If a trial is unfair, one cannot be said to have accessed justice.
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In this respect, when a murder convict's sentence cannot be reviewed by a higher court he is
denied access to justice which cannot be justified in light of Article 48 of the Constitution.

[58] To our minds, any law or procedure which when executed culminates in termination of
life, ought to be just, fair and reasonable. As a result, due process is made possible by a
procedure which allows the Court to assess the appropriateness of the death penalty in relation
to the circumstances of the offender and the offence. We are of the view that the mandatory
nature of this penalty runs counter to constitutional guarantees enshrining respect for the rule
of law.

[59] We now lay to rest the quagmire that has plagued the courts with regard to the
mandatory nature of Section 204 of the Penal Code. We do this by determining that any court
dealing with the offence of murder is allowed to exercise judicial discretion by considering
any mitigating factors, in sentencing an accused person charged with and found guilty of that
offence. To do otherwise will render a trial, with the resulting sentence under Section 204 of
the Penal Code, unfair thereby conflicting with Articles 25 (c), 28, 48 and 50 (1) and (2)(q)
of the Constitution.

Violation of Article 27 of the Constitution

[60] Another aspect of the mandatory sentence in Section 204 that we have grappled with is
its discriminate nature; discriminate in the sense that the mandatory sentence gives differential
treatment to a convict under that Section, distinct from the kind of treatment accorded to a
convict under a Section that does not impose a mandatory sentence.

[61] Article 27 of the Constitution sets out non-discrimination provisions in the following
terms:

27.(1) Every person is equal before the law and has the right to equal
protection and equal benefit of the law.

(2) Equality includes the full and equal enjoyment of all rights and
fundamental freedoms.

Article 26 of the ICCPR provides:

26. All persons are equal before the law and are entitled without any
discrimination to the equal protection of the law. In this respect, the law
shall prohibit any discrimination and guarantee to all persons equal and
effective protection against discrimination on any ground such as race,
colour, sex, language, religion, political or other opinion, national or social
origin, property, birth or other status.

[62] In the Ugandan case of Kigula (ab0ve), Susan Kigula and her maid were arrested,
charged with the offence of murder of Susan’s husband, convicted of the same, and sentenced
to death. Just like in Kenya, a conviction of murder attracted the mandatory death sentence. In
the matter, the respondents (Susan Kigula and all the 417 inmates on death row at the time)
challenged the constitutionality of the death sentence as well as the mandatory death sentence.
They urged that the mandatory death sentence was unconstitutional as it denied the convicted
person the right to appeal against the sentence, thereby denying them the right of equality
before the law and the right to fair hearing as provided for in the Constitution. They
succeeded on both aspects. The Supreme Court held that allowing offenders in all other cases
other than those accused of murder to mitigate, breached the right of equality before and
under the law. We are greatly persuaded by that decision.

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[63] Article 27 of the Constitution provides for equality and freedom from discrimination
since every person is equal before the law and has the right to equal protection and equal
benefit of the law. Convicts sentenced pursuant to Section 204 are not accorded equal
treatment to convicts who are sentenced under other Sections of the Penal Code that do not
mandate a death sentence. Refusing or denying a convict facing the death sentence, to be
heard in mitigation when those facing lesser sentences are allowed to be heard in mitigation is
clearly unjustifiable discrimination and unfair. This is repugnant to the principle of equality
before the law. Accordingly, Section 204 of the Penal Code violates Article 27 of the
Constitution as well.

[64] Having laid bare the brutal reality of the mandatory nature of the sentence under Section
204 of the Penal Code, it becomes crystal clear that that Section is out of sync with the
progressive Bill of Rights enshrined in our Constitution specifically; Articles 25 (c), 27, 28,
48 and 50 (1) and (2)(q). That Section therefore cannot stand, particularly, in light of Article
19 (3) (a) of the Constitution which provides that the rights and fundamental freedoms in the
Bill of Rights belong to each and every individual and are not granted by the State, and in
light of Article 20 (1) and (2) which provide that: (1) The Bill of Rights applies to all law and
binds all state organs and all persons and (2) Every person shall enjoy this rights and
fundamental freedoms in the Bill of Rights to the greatest extent consistent with the nature of
the right or fundamental freedom. In light of these provisions therefore, the timing of the
constitutional challenge to Section 204 of the Penal Code is propitious and will succeed.

[65] A generous and purposive interpretation is to be given to constitutional provisions that

protect human rights. This Court must give life and meaning to the Bill of Rights enshrined in
the Constitution. It is trite that the Constitution is the Supreme law, and all legislation must
conform with it.

[66] It is not in dispute that Article 26 (3) of the Constitution permits the deprivation of life
within the confines of the law. We are unconvinced that the wording of that Article permits
the mandatory death sentence. The pronouncement of a death sentence upon conviction is
therefore permissible only if there has been a fair trial, which is a non-derogable right. A fair
hearing as enshrined in Article 50 (1) of the Constitution must be read to mean a hearing of
both sides. A murder convict whose mitigation circumstances cannot be taken into account
due to the mandatory nature of the death sentence cannot be said to have been accorded a fair
hearing.

[67] It is to be noted that the mandatory nature of the death sentence provided for under
Section 204 of the Penal Code long predates any international agreements for the protection
of Human Rights. Notably too, as contended by counsel for the petitioners, the respondents
and the five amici curiae, it is indeed a colonial relic that has no place in Kenya today.
Whereas it is the duty of Parliament to make laws, it is the duty of this Court to evaluate,
without fear or favour, whether the laws passed by Parliament contravene the Constitution.

[68] Once again we agree and affirm the statement by the Court of appeal in Mutiso at
paragraph 14 that:

As will be seen shortly, and indeed it is axiomatic, human society is

constantly evolving and therefore the law, which all civilized societies
must live under, must evolve in tandem. A law that is caught up in a time
warp would soon find itself irrelevant and would be swept into the
dustbins of history. (Emphasis is ours).

[69] Consequently, we find that Section 204 of the Penal Code is inconsistent with the
Constitution and invalid to the extent that it provides for the mandatory death sentence for

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murder. For the avoidance of doubt, this decision does not outlaw the death penalty, which is
still applicable as a discretionary maximum punishment.

Sentencing Policy Guidelines: A way forward.

[70] In 2016, the Judiciary of Kenya published Sentencing Policy Guidelines which gives an
analysis on the mandatory death penalty as follows:

Situational Analysis

6.4 Whilst the law still recognizes the death penalty as a mandatory
punishment in respect to the offences aforementioned, the last execution
took place in 1986.

6.5 Following the decision in the case of Godfrey Ngotho Mutiso v.

Republic, which found the mandatory death sentence to be unconstitutional,
there have been divergent views with some courts imposing custodial
sentences for offences attracting the death penalty and others adhering to
the mandatory terms of the statutes. Subsequently, the Court of Appeal in the
case of Joseph Njuguna Mwaura and Others v. Republic, emphasised that
courts do not have discretion in respect to offences which attract a
mandatory death sentence.

Policy Directions

6.7 In the absence of law reform or the reversing of the decision in Joseph
Njuguna Mwaura and Others v. Republic, the court must impose the death
sentence in respect to capital offences in accordance with the law.

6.8 To curb the indeterminate imprisonment at the President's pleasure, the

court's recommendation to the President pursuant to section 25 (3) of the
Penal Code should include the requirement for a review of the case after a
fixed period.

[71] As a consequence of this decision, paragraph 6.4-6.7 of the guidelines are no longer
applicable. To avoid a lacuna, the following guidelines with regard to mitigating factors are
applicable in a re-hearing sentence for the conviction of a murder charge:

(a) age of the offender;

(b) being a first offender;

(c) whether the offender pleaded guilty;

(d) character and record of the offender;

(e) commission of the offence in response to gender-based violence;

(f) remorsefulness of the offender;

(g) the possibility of reform and social re-adaptation of the offender;

(h) any other factor that the Court considers relevant.

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[72] We wish to make it very clear that these guidelines in no way replace judicial discretion.
They are advisory and not mandatory. They are geared to promoting consistency and
transparency in sentencing hearings. They are also aimed at promoting public understanding
of the sentencing process. This notwithstanding, we are obligated to point out here that
paragraph 25 of the 2016 Judiciary Sentencing Policy Guidelines states that:

25. GUIDELINE JUDGMENTS

25.1 Where there are guideline judgments, that is, decisions from the
superior courts on a sentencing principle, the subordinate courts are
bound by it. It is the duty of the court to keep abreast with the guideline
judgments pronounced. Equally, it is the duty of the prosecutor and
defence counsel to inform the court of existing guideline judgments on an
issue before it.

a) Whether the indeterminate life sentence should be declared

unconstitutional"

[73] Counsel for the 1st Petitioner raised two issues with regard to the ‘indeterminate’ or
‘indefinite’ life sentence, as follows: whether the indeterminate nature of a life sentence is
unconstitutional and whether this Court should fix a definite number of years of
imprisonment, subject to remission rules, which will constitute life imprisonment. We will
address the two questions separately.

[74] The 1st petitioner submitted that the indeterminate life sentence is contrary to Articles 28
(right to dignity) and 29 (d) and (f) of the Constitution (protection from physical or
psychological torture and protection from cruel, inhuman and degrading treatment or
punishment) and it also does not provide the prisoner with an avenue for review of the
sentence. The 2nd petitioner has argued that the indeterminate life sentence which is devoid of
judicial input is contrary to Article 50 of the Constitution, which provides for the right to a
fair trial. The respondent, the DPP, did not provide substantive submissions on this question.

[75] On the other hand, counsel for the amici curiae urged the Court not to determine ‘the
constitutionality of any aspect of life imprisonment’, as it has not as yet been canvassed in the
High Court or the Court of Appeal. He also argued that because of the complexity of the
issue, the Court should avoid pre-judging any future challenge. In the event that the Court
chose to determine this issue, he argued that a lack of provision in legislation for remission or
parole for persons serving life imprisonment is contrary to amongst other sections, Article 27
of the Constitution (discrimination).

[76] We have perused and analyzed the Petition and the written submissions and it is clear
that the petitioners have not sufficiently argued and illustrated the particulars of why the
indeterminate life sentence should be declared unconstitutional. Indeed, counsel for the 1st
petitioner upon being asked by the Court to elaborate on this issue was not able to provide
adequate submissions. A critical issue such as this, where legislation is to be examined is
deserving of the reasoned and well-thought arguments of the petitioners, the Director of
Public Prosecution and other interested parties or amicus curiae and input of the High Court
and the Court of Appeal. This will allow this Court to benefit from the reasoning of these
superior Courts and the parties will not be disadvantaged by this Court’s holding which will in
effect make this Court a court of first and last instance. It is therefore our view that the
submissions made did not canvass the issue to our satisfaction. Consequently we will not
make a determination on it.

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[77] Similarly we note that counsel for the amici curiae asked this Court to declare Section
46 of the Prisons Act, Chapter 90 of the Laws of Kenya (Prisons Act) unconstitutional
because it excludes prisoners serving life sentences from being considered for remission. We
wish to restate our finding in an earlier ruling dated 28th January 2016, in Francis Karioki
Muruatetu & another v. Republic & 5 others Petition No. 6 of 2016; [2016] eKLR where the
Court limited the role and function of the amici curiae as follows:

“[43] … Any interested party or amicus curiae who signals that he or she
intends to steer the Court towards a consideration of those ‘new issues’
cannot, therefore, be allowed. Further, such issues are matters relating to
the interpretation of the Constitution, and we cannot allow them to be
canvassed in this Court for the first time, as though it was a Court of first
instance. We recognize the hierarchy of the Courts in Kenya, and their
competence to resolve these constitutional questions….”

[78] Based on the above pronouncement, we will not delve into the issue of the
unconstitutionality of Section 46 of the Prisons Act because none of the primary parties to the
dispute have raised it. This issue has also not been properly canvassed at the High Court and
Court of Appeal. We reaffirm this Court’s decision in Peter Oduor Ngoge v. Francis Ole
Kaparo & 5 Others, Supreme Court Petition No. 2 of 2012, [2012] eKLR, where this Court
declined to assume jurisdiction and address issues that have not gone through the hierarchy of
courts.

c) Whether this Court should fix a definite number of years of

imprisonment, subject to remission rules, which will constitute life
imprisonment"

[79] Counsel for the 1st Petitioner submitted that the petitioners are serving an indefinite life
sentence and invited the Court to fix a definite number of years to constitute a life sentence
even though counsel admitted that ordinarily this is a legislative function. He urged that other
countries usually enact legislation that provides for the different time periods in a life
sentence, which the prisoner must serve before review or parole. In the alternative, the 1st
petitioner prays that this Court remits the trial record to the High Court to undertake a
sentence hearing for the purpose of determining an appropriate definite sentence.

[80] The Attorney-General submitted that a life sentence ought not be equated to the natural
life of the convicted person and a judge should be accorded the opportunity to set a date when
parole could be considered.

[81] Counsel for the amici curiae argued that in effect, the petitioners are challenging the
irreducible life sentences, where the offender has no prospect of release on parole or
remission. He urged that globally, in a majority of countries that have life sentences they
provide a degree of ‘tailoring to fit’: either the Court has some discretion as to whether to
impose a life sentence at all, or there are procedures that allow for a review of the prisoner’s
case.

[82] We have looked at foreign case law from the European Court of Human Rights, and
legislation from the United Kingdom in which the indeterminate life sentence has been
examined, in order to draw valuable lessons.

[83] In the case of Kafkaris v. Cyprus (Application No. 21906/04), the European Court of
Human Rights had to determine whether the applicant’s mandatory life sentence was an
irreducible sentence and contrary to Article 3 of the European Convention of Human Rights.
This provision provides that “no one shall be subjected to torture or to inhuman or degrading

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treatment or punishment”. The Court found that there was no violation of Article 3 because
although prospects of release of prisoners serving life sentences in Cyprus was limited, it did
not mean it was irreducible. It also held that:

“98. In determining whether a life sentence in a given case can be regarded

as irreducible, the Court has sought to ascertain whether a life prisoner can
be said to have any prospect of release…. The Court has held, for instance,
in a number of cases that, where detention was subject to review for the
purposes of parole after the expiry of the minimum term for serving the life
sentence, it could not be said that the life prisoners in question had been
deprived of any hope of release …. The Court has found that this is the case
even in the absence of a minimum term of unconditional imprisonment and
even when the possibility of parole for prisoners serving a life sentence is
limited …. It follows that a life sentence does not become “irreducible” by
the mere fact that in practice it may be served in full. It is enough for the
purposes of Article 3 that a life sentence is de jure and de facto reducible.”

[84] In the case of Vinter and others v. the United Kingdom (Applications nos. 66069/09,
130/10 and 3896/10) three applicants who served the whole life sentence in the United
Kingdom challenged whether the whole life sentence which only accorded them a release at
the discretion of the justice secretary on compassionate grounds such as a terminal illness was
compatible with Article 3 of the European Convention on Human Rights. The Court held that
the sentences against the three applicants were incompatible with Article 3 because the
Criminal Justice Act of 2003 was unclear as to the review mechanism provided by the justice
secretary and the earlier set review by the Minister after the prisoner serving a life sentence
served 25 years was removed in the 2003 Act. The Court further held that"

“111. It is axiomatic that a prisoner cannot be detained unless there are

legitimate penological grounds for that detention. As was recognised by the
Court of Appeal in Bieber and the Chamber in its judgment in the present
case, these grounds will include punishment, deterrence, public protection
and rehabilitation. Many of these grounds will be present at the time when a
life sentence is imposed. However, the balance between these justifications
for detention is not necessarily static and may shift in the course of the
sentence. What may be the primary justification for detention at the start of
the sentence may not be so after a lengthy period into the service of the
sentence. It is only by carrying out a review of the justification for continued
detention at an appropriate point in the sentence that these factors or shifts
can be properly evaluated.

112. Moreover, if such a prisoner is incarcerated without any prospect of

release and without the possibility of having his life sentence reviewed, there
is the risk that he can never atone for his offence: whatever the prisoner does
in prison, however exceptional his progress towards rehabilitation, his
punishment remains fixed and unreviewable. If anything, the punishment
becomes greater with time: the longer the prisoner lives, the longer his
sentence. Thus, even when a whole life sentence is condign punishment at
the time of its imposition, with the passage of time it becomes – to
paraphrase Lord Justice Laws in Wellington – a poor guarantee of just and
proportionate punishment

120. However, the Court would emphasise that, having regard to the margin
of appreciation which must be accorded to Contracting States in the matters

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of criminal justice and sentencing (see paragraphs 104 and 105 above), it is
not its task to prescribe the form (executive or judicial) which that review
should take. For the same reason, it is not for the Court to determine when
that review should take place. This being said, the Court would also observe
that the comparative and international law materials before it shows clear
support for the institution of a dedicated mechanism guaranteeing a review
no later than twenty-five years after the imposition of a life sentence, with
further periodic reviews thereafter ….” (Emphasis added.)

[85] The European Court of Human Rights also issued an order against Hungary in the case
of László Magyar v. Hungary Application No. 73593/10 in which it held that Hungary
should reform its legislation dealing with life sentences. In the 2014 decision, the Court held
that—

“71. The present case discloses a systemic problem which may give rise to
similar applications. The nature of the violation found under Article 3 of the
Convention suggests that for the proper execution of the present judgment
the respondent State would be required to put in place a reform, preferably
by means of legislation, of the system of review of whole life sentences. The
mechanism of such a review should guarantee the examination in every
particular case of whether continued detention is justified on legitimate
penological grounds and should enable whole life prisoners to foresee, with
some degree of precision, what they must do to be considered for release and
under what conditions.

72. … The mere fact that a life sentence may eventually be served in full,
does not make it contrary to Article 3 of the Convention. Accordingly, review
of whole life sentences must not necessarily lead to the release of the
prisoner in question.”

[86] In light of the above decision, Hungary introduced a new legislation in 2015 in which it
afforded a mandatory pardon procedure for prisoners serving life sentences after they had
served a 40 year term. However, the 40 year term was challenged for being contrary to
Article 3 in the case of T.P and A.T v Hungary (Applications Nos. 37871/14 and 73986/14).
In that case, the Court held that the 40 year term before review of whole life sentences was
too long and a violation of Article 3.

[87] In the United Kingdom, the Criminal Justice Act, 2003 provides for guidelines for
sentencing those serving different categories of life imprisonment. It is noteworthy that the
Act has not scrapped the whole-life sentence and it is only handed down to those who have
committed heinous crimes.

[88] Unlike some of the cases mentioned above, the life imprisonment sentence has not been
defined under Kenyan law (see the Kenya Judiciary Sentencing Guidelines, 2016 at paragraph
23.10, page 51). It is assumed that the life sentence means the number of years of the
prisoner’s natural life, in that it ceases upon his or her death.

[89] In order to determine whether this Court can fix a definite number of years to constitute
a life sentence, we first turn to the provisions on the rights of detained persons as enshrined
under Article 51 of the Constitution, which reads:.

“51. (1) A person who is detained, held in custody or imprisoned under the
law, retains all the rights and fundamental freedoms in the Bill of Rights,
except to the extent that any particular right or a fundamental freedom is

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clearly incompatible with the fact that the person is detained, held in custody
or imprisoned.

(3) Parliament shall enact legislation that—

(a) provides for the humane treatment of persons detained, held in custody
or imprisoned; and

(b) takes into account the relevant international human rights instruments.”

[90] It is clear from this provision that it is the Legislature, and not the Judiciary, that is
tasked with providing a legal framework for the rights and treatment of convicted persons.
This premise was also attested to by the High Court in the case of Jackson Maina Wangui &
Another v. Republic Criminal No. 35 of 2012; [2014] eKLR (Jackson Wangui), where the
Court held at paragraph 72 and 76 that—

“As submitted by the petitioner, however, what amounts to life

imprisonment is unclear in our circumstances. It is not, however, for the
court to determine what should amount to a life sentence; whether one’s
natural life or a term of years. In our view, that is also the province of the
legislature.

76. …. As to what amounts to life imprisonment, that is a matter for the

legislative branch of government. It is not for the courts to determine for the
people what should be a sufficient term of years for a person who has
committed an offence that society finds reprehensible to serve.”

[91] Comparative foreign case law has also shown that the possibility of review of life
sentences and the fixing of minimum terms to serve a life sentence before parole or review, is
intrinsically linked with the objectives of sentencing. In Kenya, many courts have highlighted
the principles of sentencing. One such case is the High Court criminal appeal decision in
Dahir Hussein v. Republic Criminal Appeal No. 1 of 2015; [2015] eKLR, where the High
Court held that the objectives include: “deterrence, rehabilitation, accountability for one’s
actions, society protection, retribution and denouncing the conduct by the offender on the
harm done to the victim.”

[92] The 2016 Judiciary of Kenya Sentencing Policy Guidelines lists the objectives of
sentencing at page 15, paragraph 4.1 as follows:

“Sentences are imposed to meet the following objectives:

1. Retribution: To punish the offender for his/her criminal conduct in a just

manner.

2. Deterrence: To deter the offender from committing a similar offence

subsequently as well as to discourage other people from committing similar
offences.

3. Rehabilitation: To enable the offender reform from his criminal

disposition and become a law abiding person.

4. Restorative justice: To address the needs arising from the criminal

conduct such as loss and damages. Criminal conduct ordinarily occasions
victims’, communities’ and offenders’ needs and justice demands that these

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are met. Further, to promote a sense of responsibility through the offender’s

contribution towards meeting the victims’ needs.

5. Community protection: To protect the community by incapacitating the

offender.

6. Denunciation: To communicate the community’s condemnation of the

criminal conduct.”

The sentencing policy states at paragraph 4.2 that when carrying out sentencing all these
objectives are geared to in totality, though in some instances some of the sentences may be in
conflict.

[93] In addition, and in accordance with Article 2(6) of the Constitution, “any treaty or
convention ratified by Kenya shall form part of the law of Kenya under this Constitution”.
In 1972, Kenya ratified the International Covenant on Civil and Political Rights of 1966, and
for that reason, the Covenant forms part of Kenyan law. Article 10(3) of the Covenant
stipulates that—“[t]he penitentiary system shall comprise treatment of prisoners the essential
aim of which shall be their reformation and social rehabilitation.”

[94] We recognize that although the Judiciary released elaborate and comprehensive
Sentencing Policy Guidelines in 2016, there are no specific provisions for the sentence of life
imprisonment, because it is an indeterminate sentence. Nevertheless, we are in agreement
with the High Court decision in Jackson Wangui, supra, which found that it is not for the
court to define what constitutes a life sentence or what number of years must first be served
by a prisoner on life sentence before they are considered on parole. This is a function within
the realm of the Legislature.

[95] We also acknowledge that in Kenya and internationally, sentencing should not only be
used for the purpose of retribution, it is also for the rehabilitation of the prisoner as well as for
the protection of civilians who may be harmed by some prisoners. We find the comparative
jurisprudence with regard to the indeterminate life sentence is compelling. We find that a life
sentence should not necessarily mean the natural life of the prisoner; it could also mean a
certain minimum or maximum time to be set by the relevant judicial officer along established
parameters of criminal responsibility, retribution, rehabilitation and recidivism.

[96] We therefore recommend that Attorney General and Parliament commence an enquiry
and develop legislation on the definition of ‘what constitutes a life sentence’; this may include
a minimum number of years to be served before a prisoner is considered for parole or
remission, or provision for prisoners under specific circumstances to serve whole life
sentences. This will be in tandem with the objectives of sentencing.

[97] We are of the view that such proposed legislation will enable us to comply with Articles
2(6) of the Constitution which states that any treaty or convention ratified by Kenya shall
form part of the law of Kenya.

d) Whether any remedies accrue to the petitioners"

[98] The petitioners submitted that upon declaring mandatory death sentence unconstitutional
the Court should order for a sentencing as opposed to a re-sentencing as they would in effect
have been imprisoned illegally for seventeen years. Further, they contended that re-sentencing
would not be fair as they had been in custody way too long and that they deserved
compensation.

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[99] The respondent was of the view that it was premature and un-procedural at this stage to
award damages as the only time the Court can consider if the petitioners were unlawfully held
in custody or prison is after the re-hearing. It was the respondent’s case that the award for
damages is a civil claim that demands a separate and distinct hearing.

[100] The amici curiae urged the most appropriate remedy was a sentencing hearing by the
High Court since there had never been a valid sentence passed in the petitioners’ case. They
urged that the Court could set guidelines for the sentencing before magistrates and superior
Courts while awaiting Parliament to formulate the guidelines.

[101] The Attorney General stated that the prayer that the petitioners be taken to the High
Court for retrial sentencing should be declined. He submitted that the petitioners had
sufficient recourse for pardon, substitution or remission of punishment under Article 133 of
the Constitution. He urged the Court to refrain from supervising a re-sentencing and instead
task him to form legislative framework to address the same.

[102] We find that both petitioners are deserving of a remedy as they were denied a fair trial -
a right that accrued to them under to the previous Constitution, and to which they are still
entitled under the present Constitution. We have looked at comparative case law to give us
guidance as to how this should be done.

[103] In Reyes, the Privy Council when dealing with the unconstitutionality of the mandatory
death penalty held that:

“The case should be remitted to the Supreme Court of Belize in order

that a judge of that court may pass appropriate sentence on the appellant
having heard or received such evidence and submissions as may be
presented and made.”

[104] Similarly, upon finding the mandatory death sentence was unconstitutional, the
Supreme Court of Uganda in Kigula proceeded to make the following orders:

“1. For those respondents whose sentences were already confirmed by the
highest court, their petitions for mercy under art 121 of the Constitution
must be processed and determined within three years from the date of
confirmation of the sentence. Where after three years no decision has been
made by the executive, the death sentence shall be deemed commuted to
imprisonment for life without remission.

2. For those respondents whose sentences arose from the mandatory

sentence provisions and are still pending before an appellate court, their
cases shall be remitted to the High Court for them to be heard only on
mitigation of sentence, and the High Court may pass such sentence as it
deems fit under the law.”

[105] Article 121 of the Uganda Constitution (similar to Article 133 of the Kenya
Constitutions) provides:

“(1) There shall be an Advisory Committee on the Prerogative of Mercy

which shall consist of—

(a) the Attorney General who shall be the chairperson; and

(b) six prominent citizens of Uganda appointed by the President.

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(2) …

(3) ….

(4) The President may, on the advice of the committee—

(a) grant to any person convicted of an offence a pardon either free or

subject to lawful conditions;

(b) grant to a person a respite, either indefinite or for a specified period,

from the execution of punishment imposed on him or her for an offence;

(c) substitute a less severe form of punishment for a punishment imposed

on a person for an offence; or

(d) remit the whole or part of a punishment imposed on a person or of a

penalty or forfeiture otherwise due to Government on account of any
offence.

(5) Where a person is sentenced to death for an offence, a written report of

the case from the trial judge or judges or person presiding over the court or
tribunal, together with such other information derived from the record of the
case or elsewhere as may be necessary, shall be submitted to the Advisory
Committee on the Prerogative of Mercy.

(6) A reference in this article to conviction or imposition of a punishment,

sentence or forfeiture includes conviction or imposition of a punishment,
penalty, sentence or forfeiture by a court martial or other military tribunal
except a field court martial.”

[106] In essence, the Ugandan Supreme Court’s approach was that: for those respondents
whose cases were still pending or had not been finalized by the highest Court, they were to be
remitted back to the High Court to rehear the case on sentencing. For those who had
exhausted all avenues of appeal or concluded their matters they would rely upon the power of
mercy under Article 121 of the Constitution of Uganda for reprieve. The Court further set a
three year timeline for the Advisory Committee on the Prerogative of Mercy to perform its
duty failure of which the mandatory death sentence is automatically converted to life
imprisonment.

[107] In Malawi, the Constitutional Court in the case of Kafantayeni held that:

“We make a consequential order of remedy under s 46(3) of the

Constitution for each of the plaintiffs to be brought once more before the
High Court for a judge to pass such individual sentence on the individual
offender as may be appropriate, having heard or received such evidence or
submissions as may be presented or made to the judge in regard to the
individual offender and the circumstances of the offence.” [Emphasis added]

[108] The Malawi Court took a similar approach as the Ugandan Supreme Court. It remitted
the cases back to the High Court for proper sentencing on the basis that the High Court is
better placed to give an appropriate sentence having heard the mitigating factors.

[109] Here in Kenya, in the case of Mutiso, the Court of Appeal stated [para 38]:

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“In all the circumstances of this case, the order that commends itself to us is
to remit the case to the superior court with the direction that the court
records the prosecution’s as well as the appellant’s submissions before
deciding on the sentence that befits the appellant.”

[110] We agree with the reasoning of the Courts in the authorities cited and the submissions
of the 1st petitioner, the DPP and the amici curiae. Comparative jurisprudence is persuasive
and we see no need to deviate from the already established practice. The facts in this case are
similar to what has been decided in other jurisdictions. Remitting the matter back to the High
Court for the appropriate sentence seems to be the practice adopted where the mandatory
death penalty has been declared unconstitutional. We therefore hold that the appropriate
remedy for the petitioners in this case is to remit this matter to the High Court for sentencing.

[111] It is prudent for the same Court that heard this matter to consider and evaluate
mitigating submissions and evaluate the appropriate sentence befitting the offence committed
by the petitioners. For the avoidance of doubt, the sentencing re-hearing we have allowed,
applies only for the two petitioners herein. In the meantime, existing or intending Petitioners
with similar cases ought not approach the Supreme Court directly but await appropriate
guidelines for disposal of the same. The Attorney General is directed to urgently set up a
framework to deal with sentence re-hearing of cases relating to the mandatory nature of the
death sentence - which is similar to that of the petitioners in this case.

G. Orders

[112]Accordingly, with regards to the claims of the petitioners in this case, the Court makes
the following Orders:

a) The mandatory nature of the death sentence as provided for under

Section 204 of the Penal Code is hereby declared unconstitutional. For the
avoidance of doubt, this order does not disturb the validity of the death
sentence as contemplated under Article 26(3) of the Constitution.

b) This matter is hereby remitted to the High Court for re- hearing on
sentence only, on a priority basis, and in conformity with this judgment.

c) The Attorney General, the Director of Public Prosecutions and and other
relevant agencies shall prepare a detailed professional review in the context
of this Judgment and Order made with a view to setting up a framework to
deal with sentence re-hearing cases similar to that of the petitioners herein.
The Attorney General is hereby granted twelve (12) months from the date of
this Judgment to give a progress report to this Court on the same.

d) We direct that this Judgment be placed before the Speakers of the

National Assembly and the Senate, the Attorney-General, and the Kenya
Law Reform Commission, attended with a signal of the utmost urgency, for
any necessary amendments, formulation and enactment of statute law, to
give effect to this judgment on the mandatory nature of the death sentence
and the parameters of what ought constitute life imprisonment.

DATED and DELIVERED at NAIROBI this 14th Day of December, 2017.

….…………………………………… ….……………………………………

D. K. MARAGA P.M. MWILU

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CHIEF JUSTICE & PRESIDENT DEPUTY CHIEF JUSTICE &

OF THE SUPREME COURT VICE-PRESIDENT OF

THE SUPREME COURT

….…………………………………… ….……………………………………

J.B OJWANG S.C WANJALA

JUSTICE OF THE SUPREME COURT JUSTICE OF THE SUPREME COURT

……………………………………….…………...…
…………………….………………………………

N.S. NDUNGU I. LENAOLA

JUSTICE OF THE SUPREME COURT JUSTICE OF THE SUPREME

COURT

I certify that this is a true

copy of the original

REGISTRAR

SUPREME COURT OF KENYA

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