Court of Appeal advocates for maximum 30 years in jail instead of life sentence

The Supreme Court of Kenya. [Fidelis Kabunyi, Standard]

The Court of Appeal has declared life imprisonment in Kenya should be 30 years maximum.

The landmark judgment now changes the matrix on how Kenya punishes capital offences and those convicted for defilement.

Kenya no longer hangs those who are convicted of murder, robbery with violence, and treason. Instead, their sentences are commuted to life.

On the other hand, the Sexual Offences Act provides that a person convicted of defiling a minor aged between 12 and 15 should be jailed for more than 20 years.

Those nabbed for having sex with minors aged between 16 and 18 should get 15 years minimum, while those who defile children aged below 11 get a mandatory life sentence.

The second highest court in the land initially ruled against holding convicts until they die in prisons.

Justices Pauline Nyamweya, Jessie Lesiit and George Odunga were the first to unanimously agree that it is unfair to outlaw mandatory death sentence, only to order a person to remain behind bars until they die.

The court has for the second time waded into the legality of life sentence in Kenya and ruled that the maximum a person can serve as life sentence should be 30 years.

The judgement by justices Hannah Okwengu, Hellen Omondi and Prof Joel Ngugi was unanimous last week that life imprisonment is cruel and degrading treatment owing to the uncertainty that one will leave prison while alive.

“On our part, considering this comparative jurisprudence and the prevailing socio-economic conditions in Kenya, we come to the considered conclusion that life imprisonment in Kenya does not mean the natural life of the convict. Instead, we now hold, life imprisonment translates to 30 years’ imprisonment,” the bench headed by Justice Okwengu ruled.

The judges were determining an appeal filed by Evans Nyamari. He was accused of defiling a six-year-old child.

The Director of Public Prosecution called six witnesses while the convict gave a sworn testimony but did not call a witness. The magistrate’s court slapped him with a life sentence.

Aggrieved, he moved to the High Court claiming that the age of the minor was not proved and he was not properly identified. Justice Wilfrida Okwany dismissed his appeal and upheld both the conviction and the sentence.

He then moved to the Court of Appeal. However, he abandoned the argument that the minor’s age was not proved and the identification. He instead asked the court to consider his argument that the sentence was excessive.

Justice Hannah Okwengu. [File, Standard]

Nyamari urged the court to reduce the sentence of life imprisonment to a term sentence taking into consideration the mitigating factors in the case. The DPP did not oppose.

The debate on outlawing killing prisoners or keeping them behind bars until death is slowly but surely gaining momentum.

Justice Okwengu, Omondi and Ngugi observed that there in concurrence in Africa and Europe that a prisoner deserves a second chance.

In Africa, they singled out Zimbambwe and South Africa. In Zimbambwe, a prisoner is entitled to parole after a lapse of 25 years.

President Emerson Mnangagwa this year gave a clemency order and remitted life imprisonment to 25 years.

South Africa however has a different stand on life imprisonment. The courts there declined to outlaw sections of law providing life imprisonment as a punishment.

Instead, the judges ruled that life sentences should have a parole.

South African Supreme Court of Appeal, was unanimous that a prisoner should be considered for parole after serving 20 years of the sentence. If a prisoner is 65 years or more, he or she is entitled to parole after serving at least 15 years.

The bottom line in South Africa was that courts should not hand excessively long sentences as a way of ensuring a prisoner is not released before the expiry of the sentence.

In Europe, Germany Federal Constitutional Court found that life imprisonment is not in itself unconstitutional. However, it ruled that keeping a person behind without a realistic chance of ever regaining their freedom is against human dignity.

The German court set 15 years service as the minimum for a prisoner serving life imprisonment to qualify for parole.

In Norway, the system is totally different. The longest prison sentence that can be imposed on a prisoner is 21 years.

Nevertheless, there is an exemption for genocide, crimes against humanity and war crimes which attract a maximum 30 years.

In Asia, countries such as Malysia, Pakistan have repealed their laws to cap life imprisonment to max 40 years and 25 years respectively.

“This emerging consensus of the civilized world community, while not controlling our outcome, provides respected and significant confirmation for our own conclusion that life imprisonment is cruel and degrading treatment owing to its indefiniteness,” the Court of Appeal judges observed.

Justices Okwengu, Omondi and Ngugi ruled that Nyamari should serve 30 years owing to the severity of what he on July 10, 2011.

Justice Joel Ngugi. [Bryan Amulyoto, Standard]

An analysis of convicted persons between 2019 and 2021 indicates that Kenya had 511 convicts, among them four women, handed a life sentence in 2019.  In 2020, there were at least 128 men and two women imprisoned for life while in 2021, some 268 men and five women were jailed for life.

Meanwhile, Nyamweya, Lesiit and Odunga in a separate judgment found the purpose of jailing a person is to either deter, rehabilitate, denounce and retribution.

However, they asserted that life sentence should not mean the natural life of a prisoner.

“We are equally guided by this holding by the Supreme Court of Kenya, and in the instant appeal, we are of the view that having found the sentence of life imprisonment to be unconstitutional, we have the discretion to interfere with the said sentence,” the bench headed by Justice Nyamweya ruled.

The judges were determining an appeal filed by Julius Kistao against the State.  Kitsao was charged with defiling a four year old minor. The magistrate’s court handed him a life sentence.  

In his unsworn response to the allegations, Kistao stated that on the material day, January 20, 2013, he heard noises at his neighbour’s. Upon checking, he stated, he reported to the village elder but was beaten and taken to the police.

On October the same year, the magistrate handed him life sentence. He appealed the decision before the High Court, however, Justice Reuben Nyakundi dismissed his case.

Undeterred, he moved to the Court of Appeal.

His argument was that he was not served with the witness statements and was not assigned an advocate during the hearing.

Kitsao also argued that Section 8 (2) of the Sexual Offence Act is unconstitutional for giving a mandatory life sentence.

 He stated that at the time he was brought to court, he was 15 years. However, an age assessment indicated that he was 18 years at the time he was committing the offence.

The three Appeal Court judges observed that in his mitigation, he did not plead that he was young at the time.  Further, they were of the view that his actions to the minor were likely to affect her life.

They directed that he should instead serve 40 years for deterrence and rehabilitation.

“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,” the Court of Appeal ruled.

The same bench criticized the decision to commute the death sentence to life.

According to them, although the Supreme Court found death sentence to be legal and the same has remained legal to date, it serves no purpose as the last person to be handed death was senior private in the Kenya Air Force, Hezekiah Ochuka.

Hezekiah Ochuka. [File, Standard]

Kenya’s only mode of killing prisoners is through hanging. Ochuka was hanged on July 9, 1987 at Kamiti Prisons, at the age of 33 after being found guilty of the failed 1982 coup.

According to Justice Nyamweya, Lesiit and Odunga, those on death row have for the last 38 years been getting life sentences, after successive Presidents' committals.

“Therefore, for all practical purposes, in terms of execution of the sentences, life sentence and death sentence seems to mean the same thing in this country.

While the death sentence is retained in statute books, in reality and for all practical purposes it no longer exists. However, it is not for us to delete it from the statute books. What is however clear that in terms of execution there is no distinction between death sentence and life sentence,’ they observed.

They were of the view that an indeterminate sentence is not an incentive for an offender to reform, instead, it is simply a slow death sentence.

The three judges were determining an appeal filed by David Kiteme. They on June 9, 2023 quashed life sentence handed to him and ordered that he served 25 years.

Kiteme had been accused of killing Bahati John on the eve of May 22, 2014, in Taita Taveta County. He denied the charges.

At the heart of the murder case was his disabled niece. Kiteme is said that have accused her of stealing, after which he assaulted her using a sick.

The 17-year-old girl was hit with a brunt object on her head and was bleeding internally after her veins in the head raptured.

It was argued that Kiteme might have used either a stone or a stick to inflict the fatal injuries.

In his defence, the convict stated that he found the deceased had eaten the food that had been prepared. Being unhappy, he said, he decided to discipline her using a cane.

He stated that his niece was not disabled, instead, she was epileptic.

Kiteme further denied that he hit her on the head.  He claimed that he went to a nearby shop, bought some vegetables, cooked, ate and went to sleep in his room.

Justice Jaqueline Kamau handed him life sentence. She said he needed time to reflect in jail about his offending behaviour. The judge also stated that there was also a need to protect female members of his family.

In his appeal, he argued that Justice Jaqueline Kamau should have found him guilty of manslaughter instead of murder as he had not premeditated to kill the teenager.

The three judges found that he had a hand in his niece’s death. However, they were of the view that the sentence was too harsh.

Court of Appeal judges were of the view that although his conduct unlawful, the judge ought to have considered that he was taking care of his mother who was then 80 years and he was a first time offender.

They set aside the sentence by the High Court and substituted it with 25 years.

“While that might not have justified the Appellant’s conduct, it was a factor that ought to have been taken into account in passing the sentence,” they ruled.