The Supreme Court of Kenya has ruled on a case involving a man who was sentenced to life imprisonment for defiling a minor, determining whether the sentence should be reduced to a fixed term of thirty (30) years.
The Court noted that Section 8(2) of the Sexual Offences Act No. 3 of 2003 stipulates that a person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life.
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It was urged that a judicial pronouncement that transmutes life imprisonment to a term sentence would violate the Constitution of Kenya.
“Sentencing provided by the Sexual Offences Act is a minimum mandatory sentence which is usually pegged on the age of the victim in which case the younger the victim the stiffer the sentence,” read the ruling in part.
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“Therefore, once the trial court was satisfied that all the ingredients of defilement had been proved beyond reasonable doubt, as I have already found in this judgment, there was no room for court to exercise discretion and the only minimum mandatory sentence provided for under the Sexual Offences Act was life imprisonment.”
Supreme Court Denies Substituting Life Sentence with 30-Yr-Term
The ruling follows a case in which Evans Nyamari Ayako was arraigned before the Senior Principal Magistrate’s Court at Ogembo on 18th July 2011, charged with the offence of defilement contrary to Section 8(1), as read with Section 8(2), of the Sexual Offences Act, Cap 63A of the Laws of Kenya.
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He was also charged with an alternative offence of committing an indecent act with a child, contrary to Section 11(1) of the same Act.
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After hearing the prosecution’s witnesses and evaluating the evidence presented, the trial court found the Respondent guilty, convicted him, and sentenced him to life imprisonment in accordance with Section 8(2) of the Sexual Offences Act.
The High Court held that the trial court correctly applied the law to the facts of the case and imposed the minimum sentence provided for under Section 8(1) and (2) of the Sexual Offences Act, which is life imprisonment.
It dismissed the appeal and upheld the conviction and sentence imposed on the Respondent.
Court Of Appeal Converts Life Imprisonment to 30 Years
However, the Court of Appeal later overturned the life sentence and substituted it with a 30-year imprisonment term, effective from 18th July 2011, the date he was first arraigned in court.
In finding that an indeterminate life sentence violates Articles 27 and 28 of the Constitution, the Court of Appeal considered emerging comparative jurisprudence on evolving standards of human decency and human rights, particularly the global shift towards the abolition or redefinition of life imprisonment.
The Court examined practices in countries such as Namibia, Germany, South Africa, Mauritius, Spain, and Zimbabwe, as well as decisions from regional courts like the European Court of Human Rights, where life sentences without a definite end have been deemed contrary to human rights and amount to cruel and degrading punishment.
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It also referred to academic commentary that describes life imprisonment without the possibility of parole as a “living death sentence,” “death by incarceration,” “virtual death sentence,” “prolonged death penalty,” or “death sentence without an execution date.” It further noted that many jurisdictions have moved towards setting a fixed term for life sentences.
Drawing from the rationale adopted in these jurisdictions, the Court of appeal held that life imprisonment constitutes cruel and degrading treatment due to its indefinite nature.
As a result, it allowed the appeal against the sentence and substituted the life term with a determinate sentence of thirty (30) years.
The Respondent was therefore ordered to serve a 30-year sentence effective from 18th July 2011, the date of his arraignment.
Justification by Supreme Court
However, Supreme Court opined that the appellate court had relied on municipal law from various jurisdictions but had not identified any case where a court had converted a life sentence into a term sentence.
It added that the court did not explain how such a finding would align with Kenyan jurisprudence.
“The court had also violated Article 51 of the Constitution which provides that only Parliament can define a category of crime and prescribe punishment to it,” the ruling read further.
“Article 51(3) of the Constitution in particular, vests the Legislature with the duty of determining the treatment of prisoners including terms for parole, conditions for release, and supervision upon release.”
The Court of Appeal violated the principle of stare decisis by applying life imprisonment into a term sentence without any such enactment by the Legislature.
The court reinstated the judgment delivered by the High Court. For the avoidance of doubt, the respondent shall serve life imprisonment as originally sentenced by the Magistrate’s Court.
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