Republic v Manyeso (Petition E013 of 2024) [2025] KESC 16 (KLR) (11 April 2025) (Judgment)

Republic v Manyeso (Petition E013 of 2024) [2025] KESC 16 (KLR) (11 April 2025) (Judgment) Neutral citation: [2025] KESC 16 (KLR) REPUBLIC OF KENYA IN THE SUPREME COURT OF KENYA PETITION E013 OF 2024 PM MWILU, DCJ & VP, MK IBRAHIM, SC WANJALA, N NDUNGU & I LENAOLA, SCJJ APRIL 11, 2025 BETWEEN REPUBLIC ................................................................................................ APPELLANT AND JULIUS KITSAO MANYESO .............................................................. RESPONDENT (Being an appeal from the Judgement of the Court of Appeal at Malindi (Nyamweya, Lesiit and Odunga, JJ.A) dated 7th July 2023 in Criminal Appeal No. 12 of 2021) Courts’ Substitution of Mandatory Minimum and Maximum Sentences with Alternative Sentences is Unconstitutional: A Usurpation of Legislative Authority and a Violation of the Separation of Powers Doctrine. Reported by John Ribia Constitutional Law – separation of powers – Legislature vis-à-vis the Judiciary – courts substituting mandatory and minimum sentences – constitutionality of such actions – whether the action by courts of substituting mandatory minimum and maximum sentences with alternative sentences was unconstitutional, a usurpation of the role of the Legislature in drafting laws, and a violation of the doctrine of separation of powers – Constitution of Kenya articles 27, 28, 50, 94(1), 163(4)(a) & (7), and 164; Sexual Offences Act (cap 63A) sections 8(1) and (2). Judiciary – stare decisis – application – rationale – interpretation of the judgment and directions in Muruatetu & another v Republic; Katiba Institute & 5 others (Amicus Curiae) [2017] KESC 2 (KLR) – constitutionality of mandatory and minimum sentences - whether the Court of Appeal violated the principles of stare decisis by misapplying the decision and directions in Muruatetu & another v Republic; Katiba Institute & 5 others (Amicus Curiae) [2017] KESC 2 (KLR) (judgment and directions) in finding that the sentence of life imprisonment was unconstitutional – Constitution of Kenya article 163(7); Sexual Offences Act (cap 63A) sections 8(1) and

(2) Jurisdiction – jurisdiction of the Court of Appeal – where the Court of Appeal assumed original jurisdiction - whether the Court of Appeal had the jurisdiction to assume original jurisdiction with respect to a constitutional issue not raised before the High Court - whether findings of the Court of Appeal upon assumption of jurisdiction could be subjected to appeal before the Supreme Court – Constitution of Kenya article 164; Appellate Jurisdiction Act (cap 9) section 3; Court of Appeal Rules, 2022 (cap 9 Sub Leg) rule

107. Jurisdiction – jurisdiction of the Supreme Court – appellate jurisdiction – jurisdiction to determine appeals as of right when they raise matters of interpretation of the Constitution – whether a matter about the constitutionality of a sentencing provision involved interpretation of the Constitution and thereby warranted an appeal to the Supreme Court – Constitution of Kenya, article 163(4)(a). Brief facts The respondent was charged and convicted of the oence of delement by the Principal Magistrate's Court at Malindi. The trial court found him guilty and sentenced him to life imprisonment. His appeal to the High Court was dismissed, and conviction upheld. A second appeal to the Court of Appeal was led. While the appeal before the Court of Appeal was restricted to the issue of sentence, the Court of Appeal found and held that the sentence of life imprisonment was unconstitutional. The court relied on the ndings in Muruatetu & another v Republic; Katiba Institute & 5 others (Amicus Curiae) [2017] KESC 2 (KLR) (Muruatetu Case) to deem the life sentence unconstitutional and to substitute it with a 40-year sentence. Dissatised with the Court of Appeal’s ndings, the State led the instant appeal on grounds that the Court of Appeal acted ultra vires and without jurisdiction by assuming original jurisdiction on constitutional matters not raised at the High Court; violated the principle of stare decisis; erred in law by substituting the life imprisonment sentence with a 40-year sentence, thus usurping the legislative powers to dene sentences; and erred in law by misapplying the decision in the Muruatetu case in nding the life imprisonment sentence unconstitutional.

Issues

i. Whether a matter about the constitutionality of a sentencing provision involved interpretation of the Constitution to warrant an appeal to the Supreme Court. ii. Whether the Court of Appeal had the jurisdiction to assume original jurisdiction over a constitutional issue not raised before the High Court. iii. Whether the ndings of the Court of Appeal upon assumption of original jurisdiction could be subjected to an appeal before the Supreme Court. iv. Whether the action by courts of substituting mandatory minimum and maximum sentences with alternative sentences was unconstitutional, a usurpation of the role of the Legislature in drafting laws, and a violation of the doctrine of separation of powers. v. Whether the Court of Appeal violated the principles of stare decisis by misapplying the decision and directions in Muruatetu & another v Republic; Katiba Institute & 5 others (Amicus Curiae) [2017] KESC 2 (KLR) (judgment and directions) in nding that the sentence of life imprisonment was unconstitutional.

Held

1. The jurisdiction of the Supreme Court to determine appeals as of right in any case involving interpretation of the Constitution and any case certied by the Court of Appeal as a matter of general public importance was granted by article 163(4) of the Constitution.

2. The issue of the sentence for delement was considered before the trial court, the High Court and the Court of Appeal, and the Court of Appeal made a nding on the constitutionality of the sentence of life imprisonment. Moreover, the appeal concerned the exercise of jurisdiction and the extent of such jurisdiction by the appellate court both in view of the doctrine of stare decisis and on consideration of original jurisdiction in an otherwise appellate setting. The issues of contestation before the Court of Appeal revolved around the interpretation and application of the Constitution, and the Supreme Court was vested with jurisdiction to handle the appeal before it.

3. Article 164(3) of the Constitution set out the jurisdiction of the Court of Appeal to hear appeals from the High Court, and any other court or tribunal as prescribed by an Act of Parliament.

4. By dint of rule 107 of the Court of Appeal Rules, 2022, in force at the time and pursuant to which the respondent led his appeal, a party was not allowed, without leave of the court, to challenge a decision of the High Court on a ground that was neither relied upon nor considered by that court.

5. The Court of Appeal acted ultra vires when it determined in the rst instance whether the life sentence imposed upon the respondent was constitutional. In the same vein, the Supreme Court could not delve into the question of the constitutionality of the sentence of life imprisonment, as it had not been raised and determined by the High Court and cascaded through the proper channels.

6. The ultimate objective in the application of stare decisis was to ensure consistency, predictability of the court’s decisions, and judicial integrity. Article 163(7) of the Constitution provided that all courts, other than the Supreme Court, were bound by the decisions of the Supreme Court. Precedents set by the Supreme Court were binding on all other courts in the land. It was imperative for all courts bound by decisions to rigorously uphold their authority, ensuring the eective functioning of the administration of justice. Without the steadfast and uniform commitment, the legal system risked ambiguity, eroding public trust, and causing disorder in the administration of justice. Failure to adhere to precedent set by the apex court and indeed superior courts may disrupt the uniformity, consistency and predictability of decisions.

7. Paragraphs 11 to 14 of the Muruatetu & another v Republic; Katiba Institute & 4 others (Amicus Curiae) [2021] KESC 31 (KLR) directions (Muruatetu Direction) were very clear that the decision in the Muruatetu & another v Republic; Katiba Institute & 5 others (Amicus Curiae) [2017] KESC 2 (KLR) (Muruatetu decision) did not invalidate mandatory sentences or minimum sentences in the Penal Code, Sexual Oences Act, or any other statute. The Muruatetu decision could not be said to be the authority for stating that all provisions of the law prescribing minimum sentences were inconsistent with the Constitution. Paragraphs 93 to 97 of the Muruatetu decision were also explicit that it was not for the court to dene what constituted a life sentence. While the Supreme Court appreciated that a life sentence could mean a certain minimum or maximum time to be set by a judicial ocer, the Supreme Court made the recommendations to the Attorney General to develop legislation on what constitutes a life sentence. It was up to the legislature to enact legislation on what constituted a life sentence and not the courts.

8. The Court of Appeal violated the principle of stare decisis by misapplying the decision in the Muruatetu case and in nding the life sentences of imprisonment unconstitutional.

9. Article 94 of the Constitution provided that legislative authority was derived from the people and, at the national level, was vested in and exercised by Parliament, while every court within the constitutional framework had the authority to determine the constitutionality of a statute. Article 165(3)(b) granted the High Court original jurisdiction to determine the question of whether a right or fundamental freedom under the Bill of Rights had been denied, infringed, violated, or threatened. The Court of Appeal, when acting within its appellate jurisdiction, was empowered to scrutinize and interpret the constitutionality or otherwise of a statute, the issue equally having been canvassed at the rst instance before the High Court. The court's role with regard to the constitutionality of a statute was therefore conned to its interpretation and adjudication.

10. Courts could not extend their determination to rectifying or amending the statute in question, as that would contravene the doctrine of separation of powers, which delineated the functions of the judiciary, legislature, and executive. Courts must exercise caution when crafting remedies to avoid overstepping their judicial mandate and intruding upon legislative functions by prescribing or enacting amendments. When courts recognized the need for legislative intervention, it was both proper and imperative for them to recommend such measures to the appropriate authorities for adoption.

11. The Court of Appeal erred in law by substituting the life imprisonment sentence with a 40-year sentence, thereby usurping the legislative power to dene sentences. The Court of Appeal did not have jurisdiction to interfere with the sentence imposed by the trial court and armed by the rst appellate court. Consequently, the life imprisonment sentence remained lawful and in line with section 8 of the Sexual Oences Act. Petition of appeal allowed.

Orders

i. The life imprisonment sentence imposed by the trial court and affirmed by the High Court was reinstated. ii. The respondent, Julius Kitsao Munyeso should therefore complete the life imprisonment sentence imposed by the trial court. iii. Parties shall bear their own costs. iv. The sum of Kshs. 6,000/= deposited as security for costs upon lodging of the appeal, was refunded to the appellant. Citations Cases Kenya;

1. Abdalla v Republic Criminal Appeal 44 of 2018; [2022] KECA 1054 (KLR) - (Explained)

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

3. Board of Governors, Moi High School, Kabarak & another v Bell & 2 others Petition 6 & 7 of 2013 & Civil Application 12 & 13 of 2012 (Consolidated); [2013] KESC 12 (KLR) - (Explained)

4. Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others Petition 14, 14A, 14B & 14C of 2014 (Consolidated); [2015] KESC 13 (KLR) - (Explained)

5. Dande & 3 others v Inspector General, National Police Service & 5 others Petition 6 (E007), 4 (E005) & 8 (E010) of 2022 (Consolidated); [2023] KESC 40 (KLR) - (Explained)

6. Deposit Protection Fund Board v Sunbeam Supermarket Ltd & 2 others Civil Case 3099 of 1996; [2004] KEHC 2659 (KLR) - (Followed)

7. Gathano v Republic Criminal Appeal 12 of 2020; [2022] KEHC 748 (KLR) - (Explained)

8. Gitonga v Republic Petition 11 of 2017; [2020] KESC 61 (KLR) - (Explained)

9. Joho & another v Shahbal & 2 others Petition 10 of 2013; [2014] KESC 34 (KLR) - (Explained)

10. Karani v Judicial Service Commission Petition 3 of 2021; [2022] KESC 37 (KLR) - (Explained)

11. Katana & another v Republic Criminal Appeal 8 of 2019; [2022] KECA 1160 (KLR) - (Explained)

12. Kerich v Republic Criminal Appeal 27 of 2015; [2022] KEHC 1152 (KLR) - (Followed)

13. Kimutai v Republic (Petition E045 of 2021) [2022] KEHC 11784 (KLR) - (Followed)

14. Lawrence v Republic Criminal Appeal 48 of 2017; [2021] KECA 172 (KLR) - (Explained)

15. Marindany v Republic Criminal Appeal 27 of 2015; [2023] KECA 450 (KLR) - (Explained)

16. Mukullu v Minister for Lands and Settlement & 6 others Civil Appeal 158 of 2007; [2015] KECA 923 (KLR) - (Followed)

17. Mulwa v Republic Criminal Appeal 109 of 2022; [2023] KECA 693 (KLR) - (Explained)

18. Munya v Kithinji & 2 others Application 5 of 2014; [2014] KESC 30 (KLR) - (Explained)

19. Muruatetu & another v Republic; Katiba Institute & 4 others (Amicus Curiae) Petition 15 & 16 of 2015; [2021] KESC 31 (KLR) - (Explained)

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

21. Musyoki v Republic (Criminal Appeal 72 of 2019) [2023] KEHC 18562 (KLR) - (Mentioned)

22. Mwangi v Republic Criminal Appeal 215 of 2011; [2015] KEHC 1424 (KLR) - (Explained)

23. Nandy v Kibe Civil Appeal 39 of 2015; [2016] KECA 622 (KLR) - (Explained)

24. National Bank of Kenya Limited v Anaj Warehousing Ltd Petition 36 of 2014; [2015] KESC 4 (KLR) - (Explained)

25. National Bank of Kenya Ltd v Ayah Civil Appeal 119 of 2002; [2009] KECA 467 (KLR) - (Explained)

26. Nduttu & 6000 others v Kenya Breweries Ltd & another Petition 3 of 2012; [2012] KESC 9 (KLR) - (Followed)

27. Pop-In (Kenya) Ltd & 3 others v Habib Bank AG Zurich Civil Appeal 80 of 1988; [1990] KECA 62 (KLR) - (Explained)

28. Rai & 3 others v Rai & 5 others Petition 4 of 2012; [2013] KESC 21 (KLR) - (Explained)

29. Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) Petition E018 of 2023; [2024] KESC 34 (KLR) - (Explained)

30. Shah & 7 others v Mombasa Bricks & Tiles Limited & 5 others Petition 18 (E020) of 2022; [2023] KESC 106 (KLR) - (Explained)

31. Shikuku v Republic Constitutional Reference 3 of 2011; [2012] KEHC 5517 (KLR) - (Followed)

32. Wambora v County Assembly of Embu & 36 others Civil Appeal 194 of 2015; [2015] KECA 137 (KLR) - (Explained)

33. Wanjiru v Republic Criminal Petition 27 of 2019; [2020] KEHC 697 (KLR) - (Explained)

34. Wanjohi v Kariuki & 2 others Petition 2A of 2014; [2014] KESC 26 (KLR) - (Explained)

35. Wekesa v Republic Criminal Appeal 112 of 2019; [2023] KECA 175 (KLR) - (Explained) United Kingdom

1. R v Beiber [2009] 1 WLR 223 - (Explained)

2. Vinter & others v United Kingdom (Application Nos 66069/09 and 3896/10 [2016] III ECHR 317 - (Explained) Regional Court Dodhia v National & Grindlays Bank Limited & another [1970] EA 195 - (Explained) Statutes Kenya

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

2. Children Act (Cap 141) sections 189, 190, 191 - (Interpreted)

3. Constitution of Kenya articles 1, 27(1)-(4); 28; 50(2)(a,b,c,j); 50(2)(g)(h); 94(1); 163(4)(a); 163(7) - (Interpreted)

4. Court of Appeal Rules, 2022 (Cap 9 Sub Leg) rule 107 - (Interpreted)

5. Criminal Procedure Code Act (Cap 75) sections 215, 361(1)(2) - (Interpreted)

6. Evidence Act (Cap 80) section 163 - (Interpreted)

7. Penal Code (Cap 63) section 204 - (Interpreted)

8. Sexual Oences Act (Cap 63A) section 8(1)(2) - (Interpreted)

9. Supreme Court Act (Cap 9B) sections 3A, 15A, 16, 21(1) - (Interpreted) Advocates Ms Freda Mwanza, Ms Magdalene Ngalyuka, Mr Jami Yamina and Ms Becky Arunga for the appellant. Mr Ray Tollo for the respondent.