13 July 2023 1:23 PM GMT
The Kenya Court of Appeal has declared the imposition of mandatory life imprisonment as unconstitutional, while hearing a rape case committed on a four-year-old girl in 2013. Partially allowing the appeal, it modified the life imprisonment sentence to imprisonment of 40 years for the convict.Article 27 of the Constitution of Kenya ensures fundamental right to equality before the law and...
The Kenya Court of Appeal has declared the imposition of mandatory life imprisonment as unconstitutional, while hearing a rape case committed on a four-year-old girl in 2013. Partially allowing the appeal, it modified the life imprisonment sentence to imprisonment of 40 years for the convict.
Article 27 of the Constitution of Kenya ensures fundamental right to equality before the law and equal protection of law and according to Article 28, “every person has inherent dignity and the right to have that dignity respected and protected.”
The bench of Justice P.Nyamweya, Justice J. Lesiit and Justice G.V. Odunga said, mandatory life imprisonment “is an unjustifiable discrimination, unfair and repugnant to the principle of equality before the law under Article 27 of the Constitution. In addition, an indeterminate life sentence is in our view also inhumane treatment and violates the right to dignity under Article 28.”
It referred to the European Court of Human Rights in Vinter and others vs The United Kingdom, wherein it was held, “that 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.”
The Court was hearing the appeal of Julius Kitsao Manyeso, who was convicted and sentenced to life imprisonment by the High Court of Kenya for committing the offence of "defilement" on a four-and-a-half-year-old girl in 2013 which is punishable under Section 8 (2) of the Sexual Offences Act with mandatory imposition of life imprisonment.
According to the prosecution Julius had “unlawfully caused his penis to penetrate the vagina of… a child aged 4 1⁄2 years.”
Challenging his sentence in the appeal, Julius submitted that “section 8 (2) of the Sexual Offences Act provided for a mandatory life sentence and forced the trial Court to impose sentence predetermined by the legislature, contrary to the doctrine of separation of powers between the judiciary and the parliament pursuant to article 160 (1) of the Constitution thereby depriving the magistrate of sentencing discretion.”
Considering the submissions, the Court referred to the case of Kenya’s Apex Court decision in Francis Karioko Muruatetu & another v Republic  wherein it held 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.”
In the light of the above decision the Court held that, the mandatory indeterminate life 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.”
The bench further opined that while the appellant should be given the opportunity for rehabilitation, he also merits a deterrent sentence.
Therefore, upholding the conviction it said, “we accordingly set aside the sentence of life imprisonment imposed on the Appellant and substitute therefor a sentence of 40 years in prison to run from the date of his conviction.”
Case Title: Julius Kitsao Manyeso v. Republic
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