Republic v Ayako (Petition E002 of 2024) [2025] KESC 20 (KLR) (11 April 2025) (Judgment)

Republic v Ayako (Petition E002 of 2024) [2025] KESC 20 (KLR) (11 April 2025) (Judgment) Neutral citation: [2025] KESC 20 (KLR) REPUBLIC OF KENYA IN THE SUPREME COURT OF KENYA PETITION E002 OF 2024 PM MWILU, DCJ & VP, MK IBRAHIM, SC WANJALA, N NDUNGU & I LENAOLA, SCJJ APRIL 11, 2025 BETWEEN REPUBLIC ................................................................................................ APPELLANT AND EVANS NYAMARI AYAKO ................................................................ RESPONDENT (Being an appeal from the Judgment of the Court of Appeal at Kisumu (H. Okwengu, H.A. Omondi & J. Ngugi, JJ. A) in Civil Appeal No. 22 of 2018 dated 8th December 2023) Courts do not have the Jurisdiction to substitute a life sentence with a sentence of 30 years imprisonment The Supreme Court focused on whether courts possessed the jurisdiction to determine the constitutionality of life imprisonment as a court of first instance and whether it usurped legislative powers by equating "life" to a 30- year term. The Court held that the Court of Appeal acted without jurisdiction, as Article 165(3)(d) vests the High Court with the exclusive mandate to hear constitutional challenges at first instance. Jurisdiction, being a matter of law, could not be conferred by the parties' "consent" or judicial innovation. Furthermore, the court ruled that the appellate court violated the doctrine of separation of powers; while sentencing involves judicial discretion, articles 94 and 51(3) of the Constitution reserved the power to define the parameters of life imprisonment exclusively to Parliament. Finally, the Court found a breach of stare decisis, clarifying that the Muruatetu I rationale was strictly limited to the death penalty. Consequently, the court allowed the appeal, set aside the 30-year sentence, and reinstated the respondent's life imprisonment. Reported by John Ribia Jurisdiction – jurisdiction of the Court of Appeal – jurisdiction of the second appellate court in criminal cases - stare decisis – jurisdiction to expand the ratio decidendi of a Supreme Court decision – whether the Court of Appeal had the jurisdiction to extend the ratio decidendi of a Supreme Court decision - whether the Court of Appeal possessed the jurisdiction to determine the constitutionality of a mandatory life sentence as a court of first instance when the issue was not raised or adjudicated in the High Court - whether the mutual agreement or consent of parties in a criminal appeal could confer jurisdiction upon a court to determine constitutional issues not previously cascaded through the judicial hierarchy – Constitution of Kenya article 164; Appellate Jurisdiction Act (Cap 9) section 3; Criminal Procedure Code (Cap 75) section 361(1) Precedent – binding force and scope of Supreme Court decisions – application of the Muruatetu doctrine – whether the Court of Appeal erred in extending the ratio decidendi in Muruatetu I beyond the mandatory death sentence for murder to mandatory life sentences under the Sexual Offences Act contrary to the Supreme Court’s limiting directions in Muruatetu II - Muruatetu & another v Republic; Katiba Institute & 5 others (Amicus Curiae) [2017] KESC 2 (KLR); Muruatetu & another v Republic; Katiba Institute & 5 others (Amicus Curiae) [2021] KESC 31 (KLR); Manyeso v Republic [2023] KECA

827. Criminal Law - sentencing – mandatory life sentence – constitutionality and judicial discretion during sentencing– whether the Court of Appeal erred in applying the principles in Muruatetu I, which declared the mandatory nature of the death sentence unconstitutional for denying courts sentencing discretion, to mandatory life sentences under the Sexual Offences Act despite the Supreme Court’s clarification in Muruatetu II that the decision was confined to the mandatory death penalty for murder – Muruatetu & another v Republic; Katiba Institute & 5 others (Amicus Curiae) [2017] KESC 2 (KLR); Muruatetu & another v Republic; Katiba Institute & 5 others (Amicus Curiae) [2021] KESC 31 (KLR); Manyeso v Republic [2023] KECA

827. Brief facts The dispute originated in the Senior Principal Magistrate’s Court at Ogembo, where the respondent was convicted of delement under the Sexual Oences Act and sentenced to life imprisonment in December 2014. The trial court found that the respondent had violently deled a minor in broad daylight, a conviction later upheld by the High Court in 2017, which armed that life imprisonment was the lawful minimum mandatory sentence for the oence. The trajectory of the case shifted signicantly at the Court of Appeal. Although the respondent initially challenged his conviction, he abandoned that pursuit to focus solely on the constitutionality of the sentence. Relying on an emerging (and subsequently contested) interpretation of the Muruatetu I rationale, the Court of Appeal delivered a landmark judgment on 8 December 2023. The appellate court held that an indeterminate life sentence constituted cruel and degrading treatment and, in an unprecedented move, promulgated a rule equating life imprisonment in Kenya to a xed term of thirty (30) years. Aggrieved by the judicial "transmutation" of a statutory sentence, the Director of Public Prosecutions moved to the Supreme Court in February 2024. The appellant contended that the Court of Appeal had violated the principle of stare decisis, exceeded its appellate jurisdiction by determining constitutional issues as a court of rst instance, and usurped the legislative mandate of Parliament by creating a 30 year sentencing baseline. The Supreme Court was thus tasked with restoring the delicate balance between judicial discretion and the doctrine of separation of powers.

Issues

i. Whether the Court of Appeal had the jurisdiction to extend the ratio decidendi of a Supreme Court

Decision

ii. Whether the Court of Appeal possessed the jurisdiction to determine the constitutionality of a mandatory life sentence as a court of rst instance when the issue was not raised or adjudicated in the High Court. iii. Whether the Judiciary could arbitrarily substitute a statutory mandatory sentence with a specic term of years without express legislative authority or a formal declaration of unconstitutionality. iv. Whether the mutual agreement or consent of parties in a criminal appeal could confer jurisdiction upon a court to determine constitutional issues not previously cascaded through the judicial hierarchy.

Held

1. A court’s jurisdiction ows strictly from the Constitution and legislation. Under article 164(3) of the Constitution and section 361 of the Criminal Procedure Code, the Court of Appeal’s mandate was strictly appellate, restricted to matters of law arising from High Court decisions. While the respondent had challenged the sentence as "irregular" before the High Court, the specic question of the constitutionality of the life sentence was never pleaded or submitted upon at that stage.

2. The High Court, pursuant to article 165(3)(d) of the Constitution, held the exclusive mandate to interpret the Constitution at rst instance. By entertaining the constitutional challenge for the rst time on appeal, the Court of Appeal had erroneously assumed original jurisdiction. Jurisdiction was not a matter of procedural technicality and could not be conferred by the consent of parties where none exists in law. The Supreme Court could not delve into the merits of the life imprisonment sentence itself, as the issue had not been cascaded through the proper judicial channels, ultimately upholding the necessity of adhering to the established judicial hierarchy.

3. While the Executive, Legislature, and Judiciary possess unique roles, they must operate within a system of checks and balances to prevent the abuse of power. Under article 94 of the Constitution, the authority to create provisions with the force of law was vested exclusively in Parliament. The legislative process required rigorous safeguards, including public participation, to ensure the resulting laws possess legitimacy and constitutional validity.

4. While the actual act of sentencing was a judicial discretion, it was the Legislature that must set the parameters for those sentences within statutes. The Judiciary was mandated to adjudicate disputes based on existing laws and cannot strike down or modify statutory sentences based on private sentiment or benevolence. Such a reversal of the legislative process was only permissible in special circumstances involving a formal declaration of unconstitutionality grounded in sound legal principles and public interest.

5. Although a life sentence should not necessarily encompass a prisoner's natural life, the duty to dene the specic parameters of "life imprisonment" rested solely with Parliament under article 51(3) of the Constitution. It was regrettable that despite the Supreme Court’s 2017 recommendation for the Attorney General and Parliament to develop legislation on the matter, no such action had been taken.

6. The Court of Appeal had exceeded its mandate by arbitrarily substituting a life sentence with a xed term of thirty years. By doing so, the appellate court had eectively created law, a power it did not possess, without the requisite involvement of Parliament or the public. The Court of Appeal’s actions constituted an unauthorized venture outside its judicial powers, thereby undermining the constitutional division of labor between the branches of government.

7. The doctrine of stare decisis. It served as a reference point, and ensured that there was consistency, certainty and predictability in the administration of the law which in turn, enhanced condence in the justice system. Stare decisisset the baseline of how people conduct their everyday aairs and how they transact with the State.

8. The Court of Appeal had oended the principle of stare decisis by improperly extending the specialized rationale of the Muruatetu I case to life imprisonment. Although the appellate court had relied on the Manyeso v Republic (Criminal Appeal 12 of 2021); [2023] KECA 827 precedent to argue that the ndings in Muruatetu I applied mutatis mutandis to all mandatory indeterminate sentences, such an interpretation was erroneous. The Supreme Court reiterated its position from Muruatetu II, the initial decision was strictly conned to the mandatory death penalty for murder under the Penal Code and was never intended to be applied broadly to other oenses with mandatory or minimum sentences, such as those under the Sexual Oences Act.

9. The Court of Appeal’s failure to abide by the specic directions issued in the Muruatetu series constituted a signicant legal oversight. While the appellate court sought to declare minimum sentences unconstitutional by analogy, it lacked the authority to expand the Supreme Court’s limited ratio decidendi. It was not open to the Court of Appeal to apply the Muruatetu I rationale in the instant matter, as doing so bypassed the clear boundaries established by the apex court and undermined the stability of judicial precedent. Appeal allowed.

Orders

i. The Judgment of the High Court was reinstated. ii. The respondent shall serve life imprisonment as sentenced by the Magistrates’ Court. iii. Parties shall bear their own costs. iv. The sum of Kshs.6,000/= deposited as security for costs upon lodging of this appeal, be refunded to the appellant. Citations Cases Kenya

1. Asanyo & 3 others v Attorney-General Petition 7 of 2019; [2020] KESC 62 (KLR) - (Mentioned)

2. Ayako v Republic Criminal Appeal 22 of 2018; [2023] KECA 1563 (KLR) - (Mentioned)

3. In the Matter of the Interim Independent Electoral Commission (Applicant) Constitutional Application 2 of 2011; [2011] KESC 1 (KLR) - (Applied)

4. Macharia & another v Kenya Commercial Bank Ltd & 2 others Application 2 of 2011; [2012] KESC 8 (KLR) - (Explained)

5. Manyeso v Republic Criminal Appeal 12 of 2021; [2023] KECA 827 (KLR) - (Mentioned)

6. Muruatetu & another v Republic; Katiba Institute & 5 others (Amicus Curiae) Petition 15 & 16 of 2015; [2021] KESC 31 (KLR) - (Mentioned)

7. Muruatetu & another v Republic; Katiba Institute & 5 others (Amicus Curiae) Petition 15 & 16 of 2015 (Consolidated); [2017] KESC 2 (KLR) - (Mentioned)

8. Ngoge v Kaparo & 5 others Petition 2 of 2012; [2012] KESC 7 (KLR) - (Mentioned)

9. Rai & 3 others v Rai & 4 others Petition 4 of 2012; [2014] KESC 31 (KLR) - (Applied)

10. Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) Petition E018 of 2023; [2024] KESC 34 (KLR) - (Explained) United States Gore v United States 357 US 386 (1958) - (Mentioned) Statutes Kenya

1. Appellate Jurisdiction Act (Cap 9) section 3 — (Interpreted)

2. Constitution of Kenya article 2(5)(6); 27; 28; 51; 51(3); 94; 157; 163(4)(a)(7); 164(3); 165(3)(d) — (Interpreted)

3. Counter-Tracking In Persons Act (Cap 61) sections 3(5)(6); 4(3); 5(d); 7 — (Interpreted)

4. Criminal Procedure Code (Cap 75) sections 361(1)(2) — (Interpreted)

5. Judicature Act (cap 8) section 3(1)(a)(b)(c) —(Interpreted)

6. Narcotic Drugs and Psychotropic Substances (Control) Act (Cap 245) In general - (Cited)

7. Oce of the Director of Public Prosecutions Act (Cap 6B) section 3 — (Interpreted)

8. Penal Code (Cap 63) sections 203, 204 — (Interpreted)

9. Prevention of Organised Crimes Act (Cap 59) In general - (Cited)

10. Prevention of Terrorism Act (Cap 59B) section 4(1)(2) — (Interpreted)

11. Sexual Oences Act (cap 63A) sections 8(1)(2); 11(1) — (Interpreted)

12. Supreme Court Act (cap 9B) sections 3A, 15A, 15(2) — (Interpreted) Advocates Ms. Freda Mwanza, Ms. Magdalene Ngalyuka, Mr. Jami Yamina and Ms. Becky Arunga for the appellant. Mr. Ray Tollo for the respondent.