Judgment
Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) (Petition E018 of 2023) [2024] KESC 34 (KLR) (12 July 2024) (Judgment)
Republic v Mwangi; Initiative for Strategic Litigation in Africa is a judgment from Kenya in 2024. Cite it as [2024] KESC 34. Search it by the party names, the citation [2024] KESC 34, or Kenya judgment.
KenyaPDF · 396 KB[2024] KESC 34Judgment
KENYA
Republic
v.
Mwangi; Initiative for Strategic Litigation in Africa
Petition E018 of 2023
[2024] KESC 34
Proceeding. Judgment. Kenya.
Held. 1. Article 164(3) of the Constitution dened the Court of Appeal’s jurisdiction, which was expressly restricted to appeals from the High Court and any other court or tribunal that was designated by an Act of Parliament. Under article 165(3)(d)(i) and (ii), the High Court had the jurisdiction to hear any question respecting the interpretation of the Constitution. That included determining whether any law was inconsistent with or in violation of the Constitution and whether any action taken under the authority of the Constitution or any law was inconsistent with or in violation of the Constitution. That jurisdiction was, however, subject to the appellate jurisdiction given to the Court of Appeal and the Supreme Court. 2. The constitutionality of the sentence imposed within the relevant statute was not an issue placed before the Court of Appeal for its determination. The record also showed that the issue of the constitutionality of the sentence was raised for the rst time before the Court of Appeal and introduced by way of submissions by counsel representing the respondent. The constitutionality of the respondent’s sentence was also not raised either before the trial court or the High Court. The respondent, having failed to raise the issue of the constitutionality of the mandatory minimum sentence imposed on him in his appeal before the High Court, it was obvious that he was precluded from addressing the issue on appeal before the Court of Appeal. 3. Section 361(1) of the Criminal Procedure Code explicitly barred the Court of Appeal from hearing issues relating to matter
Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus
Curiae) (Petition E018 of 2023) [2024] KESC 34 (KLR) (12 July 2024) (Judgment)
Neutral citation: [2024] KESC 34 (KLR)
REPUBLIC OF KENYA
IN THE SUPREME COURT OF KENYA
PETITION E018 OF 2023
MK KOOME, CJ & P, MK IBRAHIM, SC WANJALA, N NDUNGU & I LENAOLA, SCJJ
JULY 12, 2024
BETWEEN
REPUBLIC ................................................................................................ APPELLANT
AND
JOSHUA GICHUKI MWANGI ........................................................... RESPONDENT
AND
INITIATIVE FOR STRATEGIC LITIGATION IN AFRICA
(ISLA) ................................................................................................ AMICUS CURIAE
KENYA LEGAL AND ETHICAL NETWORK ON HIV & AIDS
(KELIN) ............................................................................................ AMICUS CURIAE
FEDERATION OF WOMEN LAWYERS - KENYA (FIDA-
KENYA) ............................................................................................ AMICUS CURIAE
WOMEN’S LINK WORLDWIDE (WLW) .................................... AMICUS CURIAE
(Being an appeal from the Judgment of the Court of Appeal at Nyeri (Karanja, Kiage
& J. Mohammed, JJ.A) dated 7th October, 2022 in Criminal Appeal No. 84 of 2015)
Court of Appeal’s blanket application of the ratio decidendi in the Muruatetu case conated the
concept of mandatory sentences with minimum sentences.
Reported by Robai Nasike
Constitutional Law – jurisdiction – jurisdiction of the Court of Appeal – scope of the jurisdiction of the court
of appeal as a second appellate court – scope of the jurisdiction of the Court of Appeal under section 361 (1) of the
Criminal Procedure Code – claim that the Court of Appeal had assumed jurisdiction over a constitutional matter
that had not been raised at the High Court – where the constitutional matter raised before the Court of Appeal was
raised within a party’s submissions – whether the Court of Appeal assumed original jurisdiction on constitutional
https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/34/eng@2024-07-12 1
matters not raised at the High Court, hence acting ultra vires and without jurisdiction – Constitution of Kenya,
2010, article 164 (3); Criminal Procedure Code (cap 75), section 361 (1).
Precedents – stare decisis – application of the doctrine of stare decisis – where the Court of Appeal determined
that the ratio decidendi in the Muruatetu Case on the unconstitutionality of mandatory sentences could be applied
mutatis mutandis to the mandatory nature of minimum sentences provided for in the Sexual Offences Act –
whether the Court of Appeal’s determination and application of the Muruatetu Case and Muruatetu Directions
on mandatory sentences was a departure from the ratio decidendi of the cases, hence a violation of the doctrine
of stare decisis.
Criminal Procedure – sentences – prescription of mandatory and minimum sentences – mandatory sentences
viz-a-viz minimum sentences – distinction between mandatory sentences and minimum sentences – whether
mandatory sentences that applied to capital offences like murder were vastly different from minimum sentences
such as those found in the Sexual Offences Act and Penal Code
Constitutional Law – statutes – the constitutionality of provisions of a statute – the constitutionality of
minimum mandatory sentences as prescribed by statutes – where the Court of Appeal determined that minimum
mandatory sentences prescribed by the Sexual Offences Act violated a person’s right to a fair trial – whether a
blanket determination declaring that minimum mandatory sentences prescribed under the Sexual Offences Act
could be issued – whether courts had discretion to impose sentences below the minimum mandatory sentences as
prescribed by the Sexual Offences Act.
Brief facts
The appeal before the Supreme Court was premised on articles 159(2)(d)(e) and 163(4)(b) of the Constitution,
sections 3A, 15A, and 21(1) of the Supreme Court Act, and rules 38(1)(a) and 39 of the Supreme Court Rules,
2020. The appellant, through the Oce of the Director of Public Prosecutions, challenged the decision of the
Court of Appeal, in which the court held, inter alia, that the imposition of mandatory minimum sentences
under the Sexual Oences Act was unconstitutional.
On March 11, 2011, the respondent was arraigned before the Senior Principal Magistrate’s Court at Karatina
and charged in Criminal Case No. 215 of 2011 with the oence of delement contrary to section 8(1) as
read with section 8(3) of the Sexual Oences Act. The respondent was further charged with an alternative
count of committing an indecent act with a child contrary to section 11(1) of the Sexual Oences Act. The
trial court found the respondent guilty as charged on the main count and sentenced him to twenty (20)
years' imprisonment. The conviction and sentence were upheld on the rst appeal at the High Court. Later,
the sentence was overturned by the Court of Appeal, allowing the respondent’s appeal, setting aside the 20-
year sentence and substituting it with a 15-year sentence, running from the time the trial court imposed the
sentence. That decision prompted the instant appeal at the instance of the Republic (Oce of the Director
of Public Prosecutions).
Issues
i. Whether the Court of Appeal’s determination and application of the Muruatetu Case and Muruatetu
Directions on mandatory sentences was a departure from the ratio decidendi of the cases, hence a
violation of the doctrine of stare decisis.
ii. Whether the Court of Appeal assumed original jurisdiction on constitutional matters not raised at the
High Court and hence acted ultra vires and without jurisdiction.
iii. Whether mandatory sentences that applied to capital oences like murder were vastly dierent from
minimum sentences such as those found in the Sexual Oences Act and Penal Code.
iv. Whether a blanket determination declaring that minimum mandatory sentences prescribed under the
Sexual Oences Act were unconstitutional could be issued.
v. Whether courts had discretion to impose sentences below the minimum mandatory sentences as
prescribed by the Sexual Oences Act.
https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/34/eng@2024-07-12 2
Held
1. Article 164(3) of the Constitution dened the Court of Appeal’s jurisdiction, which was expressly
restricted to appeals from the High Court and any other court or tribunal that was designated by an
Act of Parliament. Under article 165(3)(d)(i) and (ii), the High Court had the jurisdiction to hear any
question respecting the interpretation of the Constitution. That included determining whether any
law was inconsistent with or in violation of the Constitution and whether any action taken under the
authority of the Constitution or any law was inconsistent with or in violation of the Constitution.
That jurisdiction was, however, subject to the appellate jurisdiction given to the Court of Appeal and
the Supreme Court.
2. The constitutionality of the sentence imposed within the relevant statute was not an issue placed
before the Court of Appeal for its determination. The record also showed that the issue of the
constitutionality of the sentence was raised for the rst time before the Court of Appeal and
introduced by way of submissions by counsel representing the respondent. The constitutionality
of the respondent’s sentence was also not raised either before the trial court or the High Court.
The respondent, having failed to raise the issue of the constitutionality of the mandatory minimum
sentence imposed on him in his appeal before the High Court, it was obvious that he was precluded
from addressing the issue on appeal before the Court of Appeal.
3. Section 361(1) of the Criminal Procedure Code explicitly barred the Court of Appeal from hearing
issues relating to matters of fact in cases of appeals from subordinate courts. Section 361 (1) also
elaborated that the severity of a sentence was a matter of fact and not of law, and the Court of Appeal
was barred from determining questions relating to sentences meted out, except where such sentence
had been enhanced by the High Court.
4. The Court of Appeal’s jurisdiction on second appeals was limited to only matters of law, and it could
not interfere with the decision of the High Court on facts unless it was shown that the trial court
and the rst appellate court considered matters they ought not to have considered, failed to consider
matters they should have considered, or were wrong in their decision when considering the evidence as a
whole. In such a case, such omissions or commissions would be treated as matters of law. Consequently,
the respondent's appeal on the grounds that his sentence was harsh and excessive was not one that
the Court of Appeal could lawfully determine, as it fell outside the purview of the Court of Appeal’s
jurisdiction.
5. For an appeal to lie to the Supreme Court from the Court of Appeal under article 163(4)(a), the
constitutional issue must have rst been in issue at both the High Court and then the Court of Appeal
for determination. Courts below were dissuaded from exceeding their mandate under the erroneous
view that they had been confronted by a jurisprudential moment.
6. The Court of Appeal oended the principle of stare decisis. The Court of Appeal determined that the
ratio decidendi in the Muruatetu Case on the unconstitutionality of mandatory sentences could be
applied mutatis mutandis to the mandatory nature of minimum sentences provided for in the Sexual
Oences Act. In doing so, and with respect, the Court of Appeal failed to abide by the clear principles
provided in both the Muruatetu case and the Muruatetu directions.
7. Unlike in other jurisdictions, Kenya's stare decisis principle was a constitutional obligation meant to
enhance the legal system's predictability and certainty. Article 163 (7) of the Constitution was the
embodiment of the time-hallowed common law doctrine of stare decisis. The 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 eective functioning of the administration
of justice. Without that steadfast and uniform commitment, the legal system risked ambiguity, eroding
public trust, and causing disorder in the administration of justice. In failing to follow the Muruatetu
decision and later Directions, the Court of Appeal’s blanket application of the ratio decidendi in the
Muruatetu case conated the concept of mandatory sentences with minimum sentences.
https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/34/eng@2024-07-12 3
8. Mandatory sentences left the trial court with absolutely no discretion such that upon conviction, the
singular sentence was already prescribed by law. Minimum sentences, however, set the oor rather
than the ceiling concerning sentences. What was prescribed was the least severe sentence a court could
issue, leaving it open to the discretion of the courts to impose a harsher sentence. Using the words
"mandatory" and "minimum" together convoluted the express dierent denitions given to each of the
two words.
9. The term ‘mandatory minimum’ could be found used in dierent jurisdictions, including the United
States, and in several academic articles, it was not applicable as a legally recognized term in Kenya. In
Kenya, a mandatory sentence and a minimum sentence could neither be used interchangeably nor in
similar circumstances, as they referred to two very dierent sets of meanings and circumstances.
10. In the Muruatetu case, the Supreme Court solely considered the mandatory sentence of death under
section 204 of the Penal Code as it was applied to murder cases; it did not address minimum sentences at
all. Therefore, mandatory sentences that applied, for example, to capital oences, were vastly dierent
from minimum sentences such as those found in the Sexual Oences Act and the Penal Code. Often
in crafting dierent sentencing for criminal oences, the drafters of the law in the legislature took into
consideration several issues, including deterrence of crime, enhancing public safety, sequestering of
dangerous oenders, and eliminating unjustiable sentencing disparities. Stern sentences ensured that
prejudicial myths and stereotypes no longer culminated in lenient sentences that did not reect the
gravity of sexual oences.
11. Mandatory sentences and minimum sentences as punishment in law have been commonly prescribed
by legislatures worldwide, but recently, various apex courts of several countries such as Canada, the
USA, Australia, and South Africa as well as the European Court of Human Rights have struck down
both mandatory life imprisonment as well as minimum sentences in an eort to move towards the
approach of proportionality in punishment based on the actual crime committed
12. Before Kenyan courts could determine whether or not the prevailing trends and decisions were
persuasive, there ought to be a proper case led, presented, and fully argued before the High Court and
escalated through the appropriate channels on the constitutional validity or otherwise of minimum
sentences or mandatory sentences other than for the oence of murder. That was the Supreme Court’s
approach and direction in Muruatetu, which had to remain binding to all courts below.
13. The Court of Appeal failed to identify with precision the provisions of the Sexual Oences Act it was
declaring unconstitutional, leaving its declaration of unconstitutionality ambiguous, vague, and bereft
of specicity. That approach was problematic in the realm of criminal law because such a declaration
would have a grave eect on other convicted and sentenced persons who were charged with the same
oence. Inconsistency in sentences for the same oences would also create mistrust and unfairness in
the criminal justice system. Yet the fundamental issue of the constitutionality of the minimum sentence
may not have been properly led and fully argued before the superior courts below.
14. The proper procedure before reaching such a manifestly far-reaching nding would have been for there
to have been a specic plea for unconstitutionality raised before the appropriate court. That plea must
also be precise to a section or sections of a denite statute. The court must then juxtapose the impugned
provision against the Constitution before nding it unconstitutional and must also specify the reasons
for nding such an impugned provision unconstitutional. The Court of Appeal did not declare any
particular provision of the Sexual Oences Act unconstitutional, failing to refer even to the particular
section 8 that would have been relevant to the respondent’s case.
15. The Court of Appeal concluded its decision by reducing the respondent’s sentence from the minimum
of 20 years to 15 years. In doing so, the Court of Appeal did not clarify the considerations that went
into its decision to reduce the sentence. The reasoning behind the court's decision was called into
question by that omission, as sentencing was a matter of fact unless an appellate court was dealing with
a blatantly illegal sentence.
https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/34/eng@2024-07-12 4
16. Although sentencing was an exercise of judicial discretion, it was Parliament and not the Judiciary that
set the parameters of sentencing for each crime in statute. As such, striking down a sentence provided
for in a statute must be based not only on evidence and sound legal principles but on an in-depth
consideration of public interest and the principles of public law that informed the making of that
specic law. A judicial decision of that nature could not be based on private opinions, sentiments,
sympathy or benevolence. It ought not to be arbitrary, whimsical, or capricious. However, where
a sentence was set in the statute, the Legislature had already determined the course, unless it was
declared unconstitutional, based on sound principles and clear guidelines upon which the Legislature
should then act. Suce to say, where Parliament enacts legislation, the judicial arm should adjudicate
disputes based on the provisions of the law. However, in the special circumstances of a declaration of
unconstitutionality, the process was reversed.
17. In the Muruatetu case, the Supreme Court was keen to still defer to the legislature as the proper body
mandated to legislate. While the courts had the mandate to interpret the law and, where necessary,
strike out a law for being unconstitutional, that mandate did not extend to legislation or repeal of
statutory provisions. Unless a proper case was led and the matter escalated to the Supreme Court as
prescribed, a declaration of unconstitutionality could not be made in the manner the Court of Appeal
had in the instant case.
18. The judgment of the Court of Appeal delivered on October 7, 2022 was one for setting aside. In any
case, the sentence imposed by the trial court against the respondent and armed by the rst appellate
court was lawful and remained lawful as long as section 8 of the Sexual Oences Act remained valid.
The Court of Appeal had no jurisdiction to interfere with that sentence.
19. Upon delivery of the judgment of the Court of Appeal reducing the respondent's sentence from 20
years to 15 years, the respondent had since been released from prison. The consequent eect of setting
aside the judgment of the Court of Appeal would be reinstating the initial sentence of 20 years, and it
was upon the relevant organs of the State to abide by that decision.
Petition of Appeal partly allowed.
Orders
i. The Petition of Appeal was allowed to the extent of setting aside the Judgment of the Court of Appeal in
Nyeri in Criminal Appeal No. 84 of 2015 Joshua Gichuki Mwangi v. Republic, delivered on October 7,
2022.
ii. The Respondent, Joshua Gichuki Mwangi, should complete his 20-year sentence from the date of
imposition by the trial court.
iii. There shall be no order as to costs.
Citations
Cases
Kenya
1. Erad Suppliers & General Contractors Limited v National Cereals & Produce Board Petition 5 of 2012;
[2012] KESC 6 (KLR) - (Mentioned)
2. Injiri v Republic Criminal Appeal 93 of 2014; [2018] KECA 78 (KLR) - (Mentioned)
3. Katana & another v Republic Criminal Appeal 8 of 2019; [2022] KECA 1160 (KLR) - (Explained)
4. Maingi & 5 others v Director of Public Prosecutions & another Petition E017 of 2021;
[2022] KEHC 13118 (KLR) - (Mentioned)
5. Munya v Kithinji & 2 others Application 5 of 2014; [2014] KESC 30 (KLR) - (Followed)
6. Munya v Kithinji & 2 others Petition No 2B of 2014; [2014] KESC 38 (KLR) - (Explained)
7. Munyi v Munyi Petition 31 of 2014; [2015] KESC 9 (KLR) - (Explained)
8. Muruatetu & another v Republic; Katiba Institute & 4 others (Amicus Curiae) Petition 15 & 16 of 2015;
[2021] KESC 31 (KLR) - (Explained)
https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/34/eng@2024-07-12 5
9. Muruatetu & another v Republic; Katiba Institute & 5 others (Amicus Curiae) Petition 15 & 16 of 2015
(Consolidated); [2017] KESC 2 (KLR) - (Explained)
10. Mwangi v Republic Criminal Appeal 215 of 2011; [2015] KEHC 1424 (KLR) - (Followed)
11. Ngoge v Kaparo & 5 others Petition 2 of 2012; [2012] KESC 7 (KLR) - (Mentioned)
12. Ochieng v Republic Criminal Appeal 202 of 2011; [2018] KECA 59 (KLR) - (Followed)
13. Republic v Muinde Criminal Case No 73 of 2018 - (Explained)
14. Republic v Wambogo Criminal Appeal E017 of 2021; [2022] KEHC 685 (KLR) - (Explained)
15. Simiyu v Republic Criminal Appeal 49 of 2018; [2021] KECA 295 (KLR) - (Followed)
16. SS v Republic Criminal Appeal 43 of 2018; [2021] KECA 450 (KLR) - (Followed)
17. Trusted Society of Human Rights Alliance v Attorney General & 2 others; Matemu (Interested
Party); Kenya Human Rights Commission & another (Amicus Curiae) Petition 229 of 2012;
[2012] KEHC 2480 (KLR) - (Explained)
18. Wachira & 12 others v Republic & 2 others Petition 97, 88, 90 & 57 of 2021 (Consolidated);
[2022] KEHC 12795 (KLR) - (Followed)
19. Wambui v Republic Criminal Appeal 102 of 2016; [2019] KECA 906 (KLR) - (Explained)
20. Wanyonyi v Republic Criminal Appeal 312 of 2018; [2019] KECA 679 (KLR) - (Explained)
South Africa
S v Malgas (117/2000) [2001] ZASCA 30; [2001] 3 All SA 220 (A); 2001 (2) SA 1222 (SCA); 2001 (1) SACR
469 (SCA) - (Explained)
United States
Miller v Alabama 132 S Ct 2455 (2012) - (Explained)
Canada
R v Safarzadeh Markhali 2016 SCC 14 - (Explained)
Australia
Magaming v The Queen (2013) 253 CLR 381 - (Explained)
Regional Court
1. Harkins and Edwards v United Kingdom 2012 ECHR 45 - (Explained)
2. Murray v Netherlands 2016 ECHR 408 - (Explained)
Tests
1. Garner, BA., (Ed) (2009), Black’s Law Dictionary St Paul Minnesota: West Group 9th Edn
2. Robert Mueller (1992), Mandatory Minimum Sentencing Federal Sentencing Reporter, Vol. 4, No.
4, Turmoil over Relevant Conduct in the Ninth Circuit (Jan. - Feb., 1992), pp. 230- 233
3. The Judiciary of Kenya (2016), Sentencing Policy Guidelines Nairobi; The Judiciary of Kenya
Statutes
Kenya
1. Appellate Jurisdiction Act (Cap 9) section 3(1) - (Interpreted)
2. Constitution of Kenya articles 25, 27, 28, 50, 94, 159(2)(d)(e); 160; 163(4)(b); 163(7) - (Interpreted)
3. Children Act (Cap 141) In general - (Cited)
4. Criminal Procedure Code (Cap 75) sections 215; 361(1) - (Interpreted)
5. Penal Code (Cap 63) sections 203, 204 - (Interpreted)
6. Sexual Oences Act (Cap 63A) sections 8(1)(3); 11(1) - (Interpreted)
7. Supreme Court Act (Cap 9B) sections 3A, 15A; 21(1) - (Interpreted)
8. Supreme Court Rules, 2012 (Cap 9B Sub Leg) rules 38(1)(a); 39 - (Interpreted)
9. Victim Protection Act (Cap 79A) section 4 - (Interpreted)
South Africa
Criminal Law Amendment Act, 1997 In general- (Cited)
https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/34/eng@2024-07-12 6
United Kingdom
Sexual Oences Act, 2003 In general - (Cited)
Instruments
1. Convention on Elimination of All Forms of Discrimination against Women (CEDAW), 1979
2. Declaration on the Elimination of Violence Against Women, 1993
3. European Convention for the Protection of Human Rights and Fundamental Freedoms, 1950 article 3
4. Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa
(Maputo Protocol), 2003
Advocates
Mr Duncan Ondimu & Ms Becky Arunga for the appellant
Mr Wahome Gikonyo for the respondent
Ms Winfred Odali for the amici curiae
JUDGMENT
Representation
Mr Jalson Makori, Mr Yamina Jami,
Mr Duncan Ondimu & Ms Becky Arunga for the appellant
(Oce of the Director of Public Prosecution)
Mr Wahome Gikonyo for the respondent
(Wahome Gikonyo & Company Advocates)
Ms Winfred Odali for the amici curiae (ISLA, KELIN, FIDA-KENYA & WLW)
A. Introduction
1. The appeal before the courtdated August 2, 2023 and led on even date, is premised on articles 159(2)
(d)(e) and 163(4)(b) of the Constitution, sections 3A, 15A and 21(1) of the Supreme Court Act, Cap 9B
Laws of Kenya, and rules 38(1)(a) and 39 of the Supreme Court Rules, 2020. the appellant, through the
Oce of the Director of Public Prosecutions, challenges the Court of Appeal’s decision in which the
court held, inter alia that, the imposition of mandatory minimum sentences under the Sexual Offences
Act, Cap 63A Laws of Kenya, is unconstitutional
B. Background
2. On March 11, 2011, the respondent, Joshua Gichuki Mwangi, was arraigned before the Senior
Principal Magistrate’s Court at Karatina and charged in Criminal Case No 215 of 2011, with the
oence of delement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act. The
particulars of the charge were that on March 8, 2011, in Mathira West District within the then Central
Province, the respondent intentionally caused his penis to penetrate the vagina of JWM, a child aged
fteen (15) years. The respondent was further charged with an alternative count of committing an
indecent act with a child contrary to section 11(1) of the Sexual Offences Act. On October 17, 2011, the
trial court found the respondent guilty as charged on the main count and sentenced him to twenty (20)
years imprisonment. The conviction and sentence were upheld on rst appeal at the High Court but
the sentence was later overturned by the Court of Appeal, allowing the respondent’s appeal, setting
aside the 20-year sentence and substituting it with a 15-year sentence running from the time that the
https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/34/eng@2024-07-12 7
trial court imposed its sentence. That decision prompted the present appeal at the instance of the
Republic (Oce of the Director of Public Prosecution).
C. Litigation History
i. At the Senior Principal Magistrate’s Court
3. At the hearing of Criminal Case No 215 of 2011, Republic v Joshua Gichuki Mwangi, the prosecution
called a total of ve witnesses in support of its case. The facts of the case as recounted by the minor,
PW2, were that on the material date, at about 5pm, the respondent came to her home and deceived
her mother that PW2’s father had instructed the minor to accompany the respondent to cut napier
grass. Her mother allowed her to go with him together with two donkeys for the purpose of carrying
the napier grass. PW2 further testied that she accompanied the respondent to the farm where he left
her alone for a while, only for him to return later and instructed her to go to his home without having
cut any napier grass at all. Before arriving at his home, they reached a bushy area where the respondent
slapped her twice causing her to fall down. When the minor attempted to scream, the respondent
threatened to stab her with a knife. The respondent then retrieved a condom and sexually assaulted
her. Thereafter, the respondent took the minor to his residence and beat up his wife asking her to
sleep on the oor so that he could sleep on the bed with the minor. The wife raised an alarm attracting
the respondent’s extended family, and in the ensuing scue the minor managed to escape. She sought
refuge at a neighbouring home where she spent the rest of the night. On her way home the following
day, she met her father and family members who were looking for her. The minor informed her family
of her ordeal, was taken to the local Police Station, then to Karatina Hospital where she was treated
and issued with a P3 form which she identied in court.
4. The minor’s evidence was corroborated by her father, PW3, who testied that on March 8, 2011, at
around 4pm, he sent the minor and her brother to the shops, but only her brother returned. Upon
inquiry, his wife informed him that the minor had accompanied the respondent to collect napier grass
as per his instructions. Alarmed, PW3 denied having issued such instructions, and embarked on an
unsuccessful search for the minor before returning home. At around 11.30 PM,he was woken up by
people, among them the respondent’s wife who informed him that she had left the minor and the
respondent at their house. However, when they went to the respondent’s house, they found that the
minor had ed into the night. The following day, they found the minor at a mechanic’s house in
the locality and took her to the Police Station then to Karatina District Hospital. The trial court also
considered medical evidence by an ocer from the Karatina District Hospital, which indicated that
the minor’s hymen had been broken.
5. Upon close of the prosecution’s case, the trial court concluded that the respondent had a case to answer
and he was put on his defence, wherein he was the sole witness. He testied that the whole incident
was a plot hatched by his family members to implicate him and grab his land. Upon evaluation of the
evidence before it, the trial court did not nd the respondent’s version of events believable. It observed
that the minor’s family had nothing to do with any vindictive conduct harboured by the respondent’s
family and that the evidence tendered against him was credible. Furthermore, the prosecution had
proved beyond reasonable doubt that the respondent was with the minor on the material day, and
that he failed to rebut the evidence against him. Consequently, the trial court found the respondent
guilty of the main count under section 215 of the Criminal Procedure Code, Cap 75 Laws of Kenya,
and sentenced him to 20 years imprisonment in accordance with the provisions of section 8(3) of the
Sexual Offences Act.
https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/34/eng@2024-07-12 8
ii. At the High Court
6. Aggrieved by the decision of the trial court, the respondent lodged an appeal against both his
conviction and sentence on four grounds: that the learned magistrate erred in law and in fact
by convicting him on evidence that was full of inconsistencies; convicting him of delement yet
penetration was not proved; rejecting the respondent’s defence which was not challenged by the
prosecution; and he was a family man with two children and therefore not sexually starved.
7. While appreciating his role to review, re-visit and re-analyse the evidence tendered in the lower court,
Mativo, J (as he then was) condensed the grounds of appeal before him to two; whether there was
sucient evidence to sustain the conviction and whether the respondent’s defence was considered.
8. On the issue whether there was sucient evidence to sustain the conviction, the court set out the
ingredients of the oence of delement and its penal sanctions under section 8(1) and (3) of the Sexual
Offences Act. While weighing the testimony of the minor as corroborated by her father, the court
found that her account of the events of the material day was cogent and sucient to positively link the
respondent with the oence. In the learned Judge’s view, an oence of such nature could be proved
by way of oral or circumstantial evidence of the complainant and in the present case, the oral evidence
was credible.
9. As to whether the defence of the respondent was considered, the court stated that the respondent
did not rebut the evidence tendered by the prosecution. On sentencing, the court conrmed that the
complainant was indeed a minor aged 15 at the time of the commission of the oence and was therefore
a child within the meaning of section 8(1) of the Sexual Offences Act, thereby attracting the minimum
sentence of 20 years under section 8(3) thereof. Accordingly, in a judgment delivered on November
11, 2015, the court dismissed the respondent’s appeal, and upheld the conviction and sentence.
iii. At the Court of Appeal
10. Dissatised with the decision of the High Court, the respondent lodged Criminal Appeal No 84 of
2022. The appeal was based on ve grounds, with the main complaint being that the 20-year sentence
imposed on the respondent was harsh and unconstitutional. The court was therefore urged to reduce
the sentence to allow the respondent re-join his family. The respondent also averred that he would not
be a threat to the complainant. It is instructive to note that these grounds were raised for the rst time
before the Court of Appeal and were not raised before either the trial court or the High Court.
11. In a nutshell, the appellant submitted that the mandatory nature of the sentence provided for in
section 8(3) of the Sexual Offences Act deprives courts of their legitimate jurisdiction to exercise their
judicial discretion in sentencing. He relied on the Court of Appeal’s decisions in Christopher Ochieng
v. Republic, Criminal Appeal No 202 of 2011; [2018] eKLR; Jared Koita Injiri v Republic, Criminal
Appeal No 93 of 2014; [2019] eKLR and Evans Wanjala Wanyonyi v Republic, Criminal Appeal No
312 of 2018; [2019] eKLR where in each instance, the court interfered with the sentences imposed
on the basis that their mandatory nature was unconstitutional. It was further urged that our decision
in Francis Karioko Muruatetu & Another v Republic SC Petition No 15 of 2015 as consolidated with
Petition No 16 of 2015; [2017] eKLR (the Muruatetu Case), was applicable to the Sexual Offences
Act, to the eect that the nature of mandatory sentences deprives courts of judicial discretion, which
is not in conformity with the tenets of a fair trial under article 50 of the Constitution. The respondent
therefore urged the court to reduce his 20-year imprisonment term to a 10-year sentence which he had
already served having been in custody from March 10, 2011.
https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/34/eng@2024-07-12 9
12. On the other hand, the appellant urged that, sentencing aims to protect the society from harmful
acts of criminals by serving as a prohibition to convicted persons from repeating a crime, and as a
deterrent to members of the public from committing similar crimes. It was asserted that delement is
a particularly serious crime and that the gravity of its punitive measures is an indicator of the intention
of the Legislature to curb and deter such heinous crimes which were prevalent in society. Furthermore,
it was urged that the Muruatetu case, whose aim was to abolish the mandatory death sentences was
inapplicable to the Sexual Offences Act cases and therefore, applying the Muruatetu case to oences
under the Sexual Offences Act was tantamount to amending the entire Act without going through the
requisite legislative process.
13. While underscoring its duty as a second appellate court to conne itself to matters of law, The Court of
Appeal (Karanja, Kiage & J Mohammed, JJ A) determined that the sole issue arising for determination
was that of sentencing, a matter of law within its jurisdiction. Contrary to the appellant’s justication
that mandatory minimum sentences are for purposes of deterrence, predictability of imprisonment
and enhancement of public safety, the Court of Appeal stated that such statutory sentences do
not permit judges to consider appropriate sentences within the ambit of diering circumstances.
Moreover, the court surmised that the mechanical nature of mandatory sentences is often at the
expense of proportionality, which may result in unduly harsh sentences. In this regard, the court cited
the Court of Appeal cases of Evans Wanjala Siibi v Republic (supra) and Eliud Waweru Wambui v
Republic [2019] eKLR, in which harsh sentences were meted out against the convicted persons for
sexual oences yet the cases characterised as Romeo and Juliet ones involved convicted persons, who,
like the victims, were also minors aged 17 at the time of the commission of their respective oences.
14. Additionally, the Court of Appeal debunked the appellant’s argument that application of this court’s
ndings in the Muruatetu Case on the Sexual Offences Act was tantamount to amending the Act
without going through the required legislative process. The court held that the reasoning in that case,
specically on the limitation of judicial discretion by mandatory sentences, ran afoul of the right to
fair trial and dignity under articles 25 and 28 of the Constitution. Accordingly, the court held that
the ratio decidendi of the Muruatetu case can be applied mutatis mutandis to the mandatory nature
of sentences provided for in the Sexual Offences Act. To this end, the Court of Appeal, dierently
constituted, applied the Muruatetu Case and reduced sentences meted out against the appellants while
dierently constituted in the cases of; Christopher Ochieng v Republic [2018] eKLR, Jared Koita Injiri
v Republic [2019] eKLR, SS v Republic [2021] eKLR and Simiyu v Republic (Criminal Appeal No 49
of 2018) [2021] KECA 295 (KLR).
15. Furthermore, the court stated that, while it was alive to the fact that some convicted persons were
deserving of no less than the mandatory minimum sentences provided in the Sexual Offences Act, some
cases are deserving of leniency. The court also acknowledged the power of the Legislature to enact laws
but held that the imposition of mandatory sentences by the Legislature conicts with the principle
of separation of powers by arrogating the Legislature power to determine appropriate sentences yet
it does not adjudicate particular cases and cannot appreciate the intricacies faced and appreciated by
judges. Ultimately, in its judgment dated October 7, 2022, the court allowed the respondent’s appeal,
set aside the 20-year sentence and substituted it with a 15-year sentence running from the time that
the trial court imposed its sentence.
iv. At the Supreme Court
16. Aggrieved, the appellant led the instant appeal pursuant to leave granted by the Court of Appeal in its
ruling dated July 5, 2023 (Karanja, J Mohammed and Kimaru, JJ A), in which the appeal was certied
as raising matters of general public importance; namely, whether mandatory minimum sentences as
https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/34/eng@2024-07-12 10
prescribed in the Sexual Offences Act are unconstitutional and whether courts have discretion to impose
sentences below the minimum mandatory sentences as prescribed in the Sexual Offences Act. The
appeal, in that context, challenges the Court of Appeal’s decision on grounds that the learned Judges
of Appeal;
i. Acted ultra-vires and without jurisdiction by assuming original jurisdiction on constitutional
matters not raised at the High Court;
ii. Violated the principle of stare decisis;
iii. Erred in holding that minimum mandatory sentences oend the doctrine of separation of
powers;
iv. Erred in holding that minimum mandatory sentences deprive judicial ocers the power to
exercise judicial discretion; and,
v. Erred in holding that the meting out of minimum mandatory sentences contravenes an accused
person’s right to a fair trial.
17. Accordingly, the appellant seeks the following reliefs:
a. The appeal be allowed;
b. An order setting aside the judgment of the Court of Appeal;
c. A declaration that the imposition of mandatory minimum sentences under the Sexual Offences
Act is constitutional and is also in compliance with articles 25, 27, 28 and 50 of the Constitution;
d. A declaration that the imposition of minimum mandatory sentences does not interfere with
the independence of the Judiciary under article 160 of the Constitution; and,
e. A declaration that the imposition of minimum mandatory sentences under the Sexual Offences
Act does not undermine judicial discretion of trial courts.
18. In response to the petition, the respondent led a replying adavit dated August 14, 2023 and led
on August 17, 2023; to which the appellant led a replying adavit dated August 21, 2023, and led
on August 23, 2023.
D. Submissions
i. The appellant
19. In written submissions dated November 30, 2023 and led on December 6, 2023, the appellant framed
ve issues as arising for determination by the court, namely:
a. Whether the learned Judges of the Court of Appeal acted ultra vires and without jurisdiction
by assuming original jurisdiction on constitutional matters which were not raised at the High
Court while canvassing the minimum mandatory sentences question;
b. Whether in departing from the decision on minimum mandatory sentences for sexual oences
as stated in Muruatetu & Another v Republic; Katiba Institute & 4 others (Amicus Curiae)
(Petition 15 & 16 of 2015) [2021] KESC 31 (KLR) (the Muruatetu Directions), the learned
judges of the Court of Appeal violated the principle of stare decisis;
c. Whether the Court of Appeal erred in holding that mandatory minimum sentences oend the
doctrine of separation of powers;
https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/34/eng@2024-07-12 11
d. Whether the Court of Appeal erred in holding that mandatory minimum sentences deprived
judicial ocers the power to exercise judicial discretion; and,
e. Whether the Court of Appeal erred in holding that the meting out of mandatory minimum
sentences contravenes and violates an accused’s right to fair trial.
20. On jurisdiction, the appellant submits that the Court of Appeal can only deal with matters coming
before it by way of appeal from the High Court and specically cannot assume original jurisdiction
on constitutional matters. It reiterated that the issue of mandatory minimum sentences was not raised
before the High Court hence the Court of Appeal had no jurisdiction to determine the same. To
buttress its position, the appellant cited the Court of Appeal case of Hassan Kahindi Katana v
Republic Malindi Criminal Appeal No 8 of 2019; [2022] KECA 1160 (KLR) on the limits of the
exercise of appellate jurisdiction under article 164(3)(a) of the Constitution and section 3(1) of the
Appellate Jurisdiction Act, Cap 9, Laws of Kenya. It also urged that the Court of Appeal should have
restrained itself from delving into a constitutional issue raised for the rst time at the appellate stage,
in the same manner that the Supreme Court restrained itself in the Muruatetu Case.
21. As regards stare decisis, the appellant contends that the Court of Appeal misapplied the decision in
the Muruatetu case and acted contrary to the express Muruatetu Directions, in which the court held
that the decision’s reasoning only applied to the mandatory nature of the death sentence under section
204 of the Penal Code, Cap 63, Laws of Kenya. In this regard, the appellant submits that the Court of
Appeal oended the doctrine of stare decisis as encapsulated in article 163(7) of the Constitution which
provides that all courts other than the Supreme Court are bound by the decisions of the Supreme
Court. the appellant also cited the case of Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others
SC App No 5 of 2014; [2014] eKLR, in support of that submission.
22. On the issue of the doctrine of separation of powers, the appellant submits that article 94 of the
Constitution vests the mandate to legislate in Parliament, inclusive of promulgation of oences and
prescribing of their attendant penalties. Therefore, it is in the exercise of this exclusive constitutional
mandate that the Legislature prescribed the impugned mandatory minimum sentences under the
Sexual Offences Act. the appellant underscores that, while the High Court and by extension other
superior courts have the mandate to interpret the law, that mandate does not extend to legislation or
repeal of statutory provisions. Accordingly, legislation on mandatory minimum sentences with respect
to the gravity of sexual oences was the Legislature’s way of guiding the exercise of judicial discretion
by way of checks and balances, and not a misapprehension of the separation of powers.
23. As regards judicial discretion, the appellant submits that, by interfering with a sentence armed by
the High Court without considering relevant factors, the Court of Appeal passed a sentence that
was injudicious. Specic to the facts of this case, the appellant avers that there were no extenuating
circumstances that could have warranted a sentence other that the mandatory minimum sentence.
It is also submitted that the Court of Appeal mechanically imported the ndings of the Muruatetu
Case as to the mandatory nature of the death sentence in the oence of murder under the Penal Code,
without contextualizing the position of the law on oences as it stands in Kenyan statutes. Moreover,
it is submitted that, according to the Judiciary Sentencing Policy guidelines at paragraph 7.1.7, where
the law provides a mandatory minimum sentence, the court is bound by those provisions and must
not impose a sentence lower than what is prescribed.
24. Finally, as regards the right to a fair trial, the appellant urges that the Court of Appeal erred in its
interpretation and application of articles 25 and 50 of the Constitution. It submits that all persons
charged under the Sexual Offences Act are entitled to constitutional and statutory protection relating
to fair trial under article 50 of the Constitution. Furthermore, trial magistrates are obligated to
https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/34/eng@2024-07-12 12
remind accused persons of their rights and where appropriate, to ensure the respect, protection
and enforcement of those rights during the trial process. In any event, in rare and specic cases of
violation, or threats of violation of the rights of accused persons, recourse lies with the High Court for
appropriate reliefs. Therefore, the appellant concludes that the respondent’s right to a fair trial was not
interfered with, by the imposition of a lawful sentence.
ii. The respondent
25. In his submissions in opposition to the appeal dated February 12, 2024 and led on February 22, 2024,
the respondent maintains that the Court of Appeal’s decision was legally sound.
26. On the issue of jurisdiction, the respondent posits that his grounds of appeal as framed gave the Court
of Appeal wide latitude to consider the constitutional validity of the sentence meted out against him.
Towards this end, the respondent surmises that, since his grounds of appeal were mainly based on the
unconstitutionality of his mandatory sentence, the Muruatetu Case was properly applied by the Court
of Appeal, in its nding that the sentence contravened the right to a fair trial under article 25 of the
Constitution which is a non-derogable and absolute right.
27. As regards the assertion that minimum mandatory sentences oend the doctrine of separation of
powers, deprive judicial discretion and violate the right to a fair trial, the respondent urges that the
reasoning in the Muruatetu Case on the mandatory nature of the death sentence applies to mandatory
minimum sentences under the Sexual Offences Act. Furthermore, he submits that such sentences
violate the doctrine of separation of powers by making judges mere spectators in imposing a sentence
already set by the Legislature, yet it is not the Legislature’s duty to sentence oenders. The respondent
also cites the case of Maingi & 5 others v Director of Public Prosecutions & Another, HC Petition No
E017 of 2021; [2022] KEHC 13118 (KLR) and Wachira & 12 Others v Republic and 2 Others, HC
Petition Nos 97, 88, 90 & 57 of 2021 (Consolidated); [2022] KEHC 12795 (KLR) to buttress the
submission that mandatory sentences place a limitation on judicial discretion, disregard individual
characteristics of each case and leave no room for examination of the prospect of rehabilitation or
the incarceration method to be adopted. In any event, it is submitted, mistakes on sentences can be
remedied through the requisite appellate mechanism.
28. In conclusion, the respondent urges the court to uphold the Court of Appeal decision, declare that the
mandatory minimum sentences under the Sexual Offences Act are unconstitutional and issue guidelines
similar to the Muruatetu Case on a framework to deal with sentence re-hearing.
iii. Amici Curiae (Initiative for Strategic Litigation in Africa (ISLA), Kenya Legal and Ethical Issues
Network on HIV/AIDS (KELIN), and Women’s Link Worldwide (WLW)
29. By the ruling dated November 10, 2023, the court admitted the joint amici curiae to the instant
proceedings and limited their participation to the Court’s consideration of their brief dated August
23, 2023. In their brief, the amici submitted on the following issues: violence against women
being tantamount to discrimination; the State’s due diligence obligation to punish perpetrators of
sexual violence; the necessity of mandatory minimum sentences for sexual oences as prescribed by
Parliament and comparative lessons on the application of mandatory minimum sentences in other
jurisdictions.
30. As regards violence against women as a form of discrimination, the amici submit, inter alia, that the
same is widespread in Kenya with at least 60% of women experiencing physical violence whereas 30%
of women have experienced a form of sexual violence in 2022. Furthermore, in 2021, 92% of sexual and
gender- based violence reported to the police were reported by women and girls and that the United
Nations Committee on the Elimination of all Forms of Discrimination against Women (CEDAW
https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/34/eng@2024-07-12 13
Committee) noted that gender-based violence aects women disproportionately and includes acts that
inict physical, mental or sexual harm and is a violation of the Convention on the Elimination of All
Forms of Discrimination against women (CEDAW). They add that justice systems for those reasons as
well as policy responses should consider the varying and intersecting forms of discrimination faced by
women, and ensure that gendered stereotypes, rape myths and gender biases do not lead to miscarriage
of justice and re- victimization of victims.
31. On the State’s due diligence obligation to punish perpetrators of sexual violence, the amici underscore
that Kenya has ratied CEDAW, DEVAW and the Protocol to the African Charter on Human
and People’s Rights on the Rights of Women in Africa (the Maputo Protocol). Accordingly, these
instruments enjoin States to develop penal, civil, labour and administrative sanctions in domestic
legislation, to punish and redress wrongs caused to women who are subjected to violence. Specically,
CEDAW’s Recommendations No 19 and 35 and the 1995 Beijing Declaration and Platform further
elaborate on the importance of adequate punishment and sentencing for sexual violence.
32. It is further submitted that, prior to enactment of the Sexual Offences Act, sexual oences were found
in multiple laws such as the Penal Code and the Children and Young Persons Act. This multiplicity of
laws led to their inconsistent interpretation and application, often to the detriment of victims of sexual
oences. Furthermore, the Penal Code designated sexual oences as crimes against morality which
were deemed to be less serious than crimes against the person. Sexual oences also categorised as rape,
delement and incest attracted a maximum life sentence but no minimum sentence was prescribed.
According to the amici, for these reasons, the 1990s through the early 200s recorded disturbing levels
of sexual violence. Moreover, prior to the enactment of the Sexual Offences Act in 2006, judicial
ocers meted out low and disparate sentences. Therefore, there was need for legal reforms to establish
consistency and uniformity to ensure that the sentences reected the seriousness and scale of sexual
violence against women. This culminated in the enactment of the Sexual Offences Act which set out
mandatory minimum sentences exemplifying the State’s due diligence to punish under international
laws and standards.
33. As pertains the necessity of mandatory minimum sentences as prescribed by Parliament, the amici
contend that, notwithstanding the enactment of the Sexual Offences Act, courts have been proven to
deviate from the same, in eect meting out lenient and inconsistent sentences for sexual oences. To
illustrate their assertion, they cite the case of Republic v. Nahashon Muinde Criminal Case No 73 of
2018 in which the Magistrate’s Court at Makindu sentenced the accused person to 3 years’ probation
for deling and impregnating a 14-year-old girl. Also cited was the case of Republic v Nicholas Wambogo
[2022] eKLR in which the High Court, while enhancing a 3-year sentence for delement of a 14-
year-old girl to 15 years held that the legislative scheme does not impose a fetter upon the discretion
of a sentencing court, but emphasises material factors which may justify imposition of the minimum
sentence.
34. Additionally, the amici submit that mandatory minimum sentences ensure that prejudicial myths and
stereotypes no longer culminate in lenient sentences that do not reect the gravity of sexual oences.
They cite instances in which courts have been inuenced by myths that; attempted rape is not a
serious oence; the absence of separate physical injury renders the crime less serious; and an alleged
relationship between the perpetrator and the victim diminishes the perpetrator’s culpability. Further,
as regards the Romeo and Juliet cases, the amici propose adoption of age gap provisions to address the
aspect of consensual sex between adolescents. This model creates age brackets whereby consensual sex
between persons of the same age bracket is decriminalised, without scrapping o mandatory minimum
sentences for sexual oences. Besides, the ODPP’s Diversion Policy provides that all child oenders
are eligible for diversion, including for sexual oences. The amici in that regard posit that mandatory
https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/34/eng@2024-07-12 14
minimum sentences adopt a victim-centred approach for survivors of sexual oences, ensuring that
their rights are protected in line with section 4 of the Victim Protection Act, cap 79A, Laws of Kenya
(VPA).
35. On comparative lessons as to the application of mandatory minimum sentences in other jurisdictions,
the amici urge that numerous jurisdictions have amended their criminal laws relating to rape and
other forms of sexual and gender- based violence. These countries have also introduced mandatory
minimums to ensure greater consistency in sentencing, and in recognition of women’s and children’s
rights given their disproportionate position as victims of sexual violence. The amici in that context
highlight the situation obtaining in South Africa, whereby legislation denes and limits the mitigating
circumstances that judges may employ in justifying a lesser sentence to the mandatory minimum.
Prohibited grounds include the sexual history of the complainant, the accused’s cultural and religious
beliefs about rape, and the previous relationship between the accused and the complainant.
36. Similarly, it is submitted that South Africa, Tanzania and Lesotho have statutory provisions requiring
higher sentences in certain cases, such as those involving repeat oenders and/or aggravating
circumstances. Other jurisdictions with mandatory minimums on sexual oences include Rwanda,
Zambia and Botswana while the United Kingdom has Denitive Guidelines on the Sexual Offences Act,
2003 which species a range of sentences for each type of oence with specied categories reecting
varying degrees of seriousness. The amici in that context that, urged that looking to the future, these
models can be adopted by Kenya, while retaining mandatory minimum sentences in statutes.
E. Issues for Determination
37. The issues that arise for the court’s consideration as delineated by the Court of Appeal and which are
matters of great public importance under article 163(4)(b) are:
i. Whether mandatory minimum sentences as prescribed in the Sexual Offences Act are
unconstitutional; and,
ii. Whether courts have discretion to impose sentences below the minimum mandatory sentences
as prescribed in the Sexual Offences Act.
38. From the pleadings and submissions of the parties, and taking note of the above core issues, this court
is of the considered view that additional but related questions are pertinent in the determination of
the present appeal and in the public interest-this being a matter certied as one involving matters of
great public importance. As such, the totality of the issues arising for determination in this appeal is
as follows:
i. Whether the learned Judges of the Court of Appeal acted ultra vires and without jurisdiction
by assuming original jurisdiction on constitutional matters not raised at the High Court;
ii. Whether in departing from the decision in Muruatetu & another v Republic, SC Petition 15 &
16 of 2015) [2021] KESC 31 (KLR) (the Muruatetu Directions), the Court of Appeal violated
the principle of stare decisis.
iii. Whether minimum sentences as prescribed in the Sexual Offences Act are unconstitutional;
iv. Whether courts have discretion to impose sentences below the minimum mandatory sentences
as prescribed by the Sexual Offences Act.
https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/34/eng@2024-07-12 15
F. Analysis and Determination
i. Whether the learned Judges of the Court of Appeal acted ultra vires and without jurisdiction by
assuming original jurisdiction on constitutional matters not raised at the High Court.
39. Before considering the issues as delineated by the Court of Appeal, we are bound to pronounce
ourselves, in limine on the question as to whether the Court of Appeal acted ultra vires and without
jurisdiction in the rst place, since it forms part of the grounds of this appeal. This issue is intricately
intertwined with the other three issues delineated above and so we shall determine them together.
40. the appellant submits in that context that, the Court of Appeal does not enjoy original jurisdiction
on questions relating to the interpretation of the Constitution; it can only deal with such questions
only by way of appeal from the High Court. the appellant further contends that the issue of minimum
mandatory sentences was not raised before the High Court and that the issue was raised for the rst
time before the Court of Appeal. Therefore, the Court of Appeal had no jurisdiction whatsoever to
determine it.
41. The respondent on the other hand contends that the grounds of appeal he framed gave the Court of
Appeal wide latitude to consider the constitutional validity of the sentence meted out against him.
He points out that, since his grounds of appeal were mainly based on the unconstitutionality of his
mandatory sentence, the Muruatetu case was properly applied by the Court of Appeal, in its nding
that the sentence contravened the right to a fair trial under article 25 of the Constitution which is a non-
derogable and absolute right.
42. On our part, we note that the Court of Appeal in its judgment delivered on October 7, 2022 pointed
out that the respondent’s appeal was based on ve grounds, with the main complaint being that the
20-year sentence imposed on the respondent was harsh and unconstitutional. Further that the court
was urged to reduce it so as to allow him to go back to his family.
43. article 164(3) of the Constitution denes the Court of Appeal’s jurisdiction, which is expressly
restricted to appeals from the High Court and any other court or tribunal that is designated by an Act
of Parliament. Under article 165(3)(d)(i) and (ii), the High Court is clothed with the jurisdiction to
hear any question respecting the interpretation of the Constitution. This includes determining whether
any law is inconsistent with or in violation of the Constitution and whether any action taken under
the authority of the Constitution or any law is inconsistent with or in violation of the Constitution.
This jurisdiction is however subject to the appellate jurisdiction given to the Court of Appeal and the
Supreme Court.
44. This clear and uncontested position lends credence to the argument by the appellant that the
Court of Appeal heard and determined the present matter without jurisdiction, regarding the
unconstitutionality of the sentence meted against the respondent, because the High Court did not in
any way address the issue that the appellate court ultimately focused its judgment on.
45. We have further noted that, from the respondent’s grounds of appeal which appear in the record of
appeal, the respondent specically complained that the sentence of 20 years was harsh and excessive
and that the court ought to reduce the same to a convenient term deemed t to enable him re-join his
family and society while not being a threat to the complainant. The constitutionality of the sentence
imposed within the relevant statute was therefore not an issue placed before the Court of Appeal for
its determination.
https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/34/eng@2024-07-12 16
46. We reproduce the grounds of appeal verbatim and for clarity as follows:
“ 1. That, the 20yrs imprisonment imposed against me is harsh and excessive.
2. That, I urge this hon. court to reduce the same under its own convenient term
deemed t(sic).
3. That, if the sentence is reduced at the court’s discretion it will enable me join
my family and society and not be a threat to the complainant.
4. That, I am now 34 years old with 3 children being the only bread winner
who by now they are under the care of the elderly parents same who are not
nancially stable(sic).
5. That, other grounds to be adduced and I kindly urge this court to be present
during the hearing of this appeal(sic).”
47. The record also shows that issue of constitutionality of the sentence was raised for the rst time before
the Court of Appeal and introduced by way of submissions by counsel representing the respondent.
Having combed through the record of appeal and proceedings, we note that the constitutionality of
the respondent’s sentence was also not raised either before the trial court or the High Court. The
respondent having failed to raise the issue of the constitutionality of the mandatory minimum sentence
imposed on him in his appeal before the High Court, it is obvious to us that he was precluded from
addressing the issue on appeal before the Court of Appeal.
48. Before further delving into the question of constitutionality or otherwise of the sentence, we must take
cognizance of provisions of section 361(1) of the Criminal Procedure Code which, in cases of appeals
from subordinate courts, explicitly bars the Court of Appeal from hearing issues relating to matters of
fact. This section also elaborates that the severity of sentence is a matter of fact and not of law and the
Court of Appeal is barred from determining questions relating to sentences meted out, except where
such sentence has been enhanced by the High Court. We produce the same verbatim as follows:
“ 361. Second Appeals
(1) A party to an appeal from a subordinate court may, subject to subsection (8),
appeal against a decision of the High Court in its appellate jurisdiction on a
matter of law, and the Court of Appeal shall not hear an appeal under this
section—
(a) on a matter of fact, and severity of sentence is a matter of fact; or
(b) against sentence, except where a sentence has been enhanced by
the High Court, unless the subordinate court had no power
under section 7 to pass that sentence.”
49. Thus, the Court of Appeal’s jurisdiction on second appeals is limited to only matters of law and it
could not interfere with the decision of the High Court on facts unless it was shown that the trial court
and the rst appellate court considered matters they ought not to have considered, failed to consider
matters they should have considered, or were plainly wrong in their decision when considering the
evidence as a whole. In such a case, such omissions or commissions would be treated as matters of law.
Consequently, the respondent's appeal on the grounds that his sentence was harsh and excessive was
https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/34/eng@2024-07-12 17
not one that the Court of Appeal could lawfully determine as it fell outside the purview of the Court
of Appeal’s jurisdiction.
50. As we have stated before, this court recognizes and respects the constitutional competence of courts in
the judicial hierarchy to resolve matters before them. We have also settled that for an appeal to lie to
the Supreme Court from the Court of Appeal under article 163(4)(a), the constitutional issue must
have rst been in issue at both the High Court and then the Court of Appeal for determination. We
have stated so in a myriad of cases including Peter Oduor Ngoge vs Francis Ole Kaparo & 5 others, SC
Petition No 2 of 2012 [2012] eKLR and Erad Suppliers & General Contractors Limited v National
Cereals & Produce Board, SC Petition No 5 of 2012 [2012] eKLR. It was subsequently summed up in
Gladys Wanjiru Munyi v Diana Wanjiru Munyi, SC Petition No 31 of 2014 [2015] eKLR thus:
“ In Peter Ngoge v Francis Ole Kaparo & 5 others, Sup Ct Petition No 2 of 2012 [2012]
eKLR, we signaled the guiding principle that the chain of courts in the constitutional set-
up, running up to the Court of Appeal, do indeed have the competence to resolve all matters
turning on the technical complexities of the law, and that only cardinal issues of law, or of
jurisprudential moment, deserve the further input of the Supreme Court.”
We reiterate the above guiding principle and would dissuade courts below from exceeding their
mandate under the erroneous view that they have been confronted by a jurisprudential moment.
ii. Whether in departing from the decision in Muruatetu & another v Republic; SC Petition 15 & 16
of 2015) [2021] KESC 31 (KLR) (the Muruatetu Directions), the Court of Appeal violated
the principle of stare decisis?
51. In the Muruatetu case, this court was clear that what was in contention before it was the mandatory
nature of the sentence of death imposed upon the appellants therein by the High Court and armed
by the Court of Appeal for the oence of murder contrary to section 203 as read with section 204 of
the Penal Code. the appellants had argued that the mandatory sentence of death was inconsistent with
the Constitution. This court in its nal judgment issued the following declarations and orders:
“ a) The mandatory nature of the death sentence as provided for under section
204 of the Penal Code is hereby declared unconstitutional. For the avoidance
of doubt, this order does not disturb the validity of the death sentence as
contemplated under article 26(3) of the Constitution.
b) This matter is hereby remitted to the High Court for re- hearing on sentence
only, on a priority basis, and in conformity with this judgment.
c) The Attorney General, the Director of Public Prosecutions and other relevant
agencies shall prepare a detailed professional review in the context of this
Judgment and Order made with a view to setting up a framework to deal with
sentence re-hearing cases similar to that of the petitioners herein. The Attorney
General is hereby granted twelve (12) months from the date of this Judgment
to give a progress report to this court on the same.
d) We direct that this Judgment be placed before the Speakers of the National
Assembly and the Senate, the Attorney-General, and the Kenya Law Reform
Commission, attended with a signal of the utmost urgency, for any necessary
amendments, formulation and enactment of statute law, to give eect to this
https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/34/eng@2024-07-12 18
judgment on the mandatory nature of the death sentence and the parameters
of what ought to constitute life imprisonment”. (Our emphasis).
52. In light of the structural and supervisory interdicts issued, the court issued the Muruatetu Directions,
wherein it, inter alia, pronounced itself on the application of its decision in the Muruatetu Case to
other statutes prescribing mandatory or minimum sentences as follows:
“ 10. It has been argued in justifying this state of aairs, that, by paragraph 48 of the Judgment
in this matter, or indeed the spirit of the Judgment as a whole, the court has outlawed all
mandatory and minimum sentence provisions; and that although Muruatetu specically
dealt with the mandatory death sentence in respect of murder, the decision's expansive
reasoning can be applied to other oenses that prescribe mandatory or minimum sentences.
Far from it. In that paragraph, we stated categorically that:
“ [48] section 204 of the Penal Code deprives the court of the use of judicial
discretion in a matter of life and death. Such law can only be regarded as harsh,
unjust and unfair. The mandatory nature deprives the courts of their legitimate
jurisdiction to exercise discretion not to impose the death sentence in appropriate
cases. Where a court listens to mitigating circumstances but has, nonetheless, to
impose a set sentence, the sentence imposed fails to conform to the tenets of
fair trial that accrue to accused persons under article 25 of the Constitution; an
absolute right”.
Reading this paragraph and the Judgment as a whole, at no point is reference made to
any provision of any other statute. The reference throughout the Judgment is only made
to section 204 of the Penal Code and it is the mandatory nature of death sentence under
that section that was said to deprive the “courts of their legitimate jurisdiction to exercise
discretion not to impose the death sentence in appropriate cases
11. The ratio decidendi in the decision was summarized as follows:
“ 69. Consequently, we nd that section 204 of the Penal Code is
inconsistent with the Constitution and invalid to the extent that
it provides for the mandatory death sentence for murder. For the
avoidance of doubt, this decision does not outlaw the death penalty,
which is still applicable as a discretionary maximum punishment”.
We therefore reiterate that, this court’s decision in Muruatetu, did not
invalidate mandatory sentences or minimum sentences in the Penal Code, the
Sexual Offences Act or any other statute.”
………
14. It should be apparent from the foregoing that Muruatetu cannot be the
authority for stating that all provisions of the law prescribing mandatory or
minimum sentences are inconsistent with the Constitution. It bears restating
that it was a decision involving the two petitioners who approached the court
for specic reliefs. The ultimate determination was conned to the issues
presented by the petitioners, and as framed by the court.
15. To clear the confusion that exists with regard to the mandatory death
sentence in oences other than murder, we direct in respect of other capital
https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/34/eng@2024-07-12 19
oences such as treason under section 40(3), robbery with violence under
section 296(2), and attempted robbery with violence under section 297(2)
of the Penal Code, that a challenge on the constitutional validity of the
mandatory death penalty in such cases should be properly led, presented,
and fully argued before the High Court and escalated to the Court of
Appeal, if necessary, at which a similar outcome as that in this case may be
reached. Muruatetu as it now stands cannot directly be applicable to those
cases.” [Emphasis ours]
53. We therefore nd that in this matter the Court of Appeal did oend the principle of stare decisis.
Notably, we observe that the Court of Appeal determined that the ratio decidendi in the Muruatetu
Case on the unconstitutionality of mandatory sentences could be applied mutatis mutandis to the
mandatory nature of minimum sentences provided for in the Sexual Offences Act. In doing so, and with
respect, the Court of Appeal failed to abide by the clear principles provided in both the Muruatetu
case and the Muruatetu directions in this instance.
54. As we have stated before in several cases, unlike in other jurisdictions, Kenya's stare decisis principle
is a constitutional obligation meant to enhance the legal system's predictability and certainty. In the
case of Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others, SC Petition No 2B of 2014
[2014] eKLR, we stated that article 163(7) of the Constitution is the embodiment of the time-hallowed
common law doctrine of stare decisis. It holds that the precedents set by this court are binding on all
other courts in the land. It is imperative for all courts bound by decisions to rigorously uphold their
authority, ensuring the eective functioning of the administration of justice. Without this steadfast
and uniform commitment, the legal system risks ambiguity, eroding public trust, and causing disorder
in the administration of justice.
55. Turning to the specic issue confronting us in this appeal, we are of the view that, in failing to
follow the Muruatetu decision and later Directions, the Court of Appeal’s blanket application of the
ratio decidendi in the Muruatetu case conated the concept of mandatory sentences with minimum
sentences.
56. Black’s Law Dictionary, 9th Edition, denes a mandatory sentence as follows:
“ A sentence set by law with no discretion for the judge to individualize punishment.”
While minimum sentence is as dened as follows:
“ The least amount of time that a convicted criminal must serve in prison before becoming
eligible for parole.”
57. Mandatory sentences leave the trial court with absolutely no discretion such that upon conviction, the
singular sentence is already prescribed by law. Minimum sentences however set the oor rather than
the ceiling when it comes to sentences. What is prescribed is the least severe sentence a court can issue,
leaving it open to the discretion of the courts to impose a harsher sentence. In fact, to use the words
mandatory and minimum together convolutes the express dierent denitions given to each of the
two words. Although, the term ‘mandatory minimum’ can be found used in dierent jurisdictions,
including the United States, and in a number of academic articles, it is not applicable as a legally
recognised term in Kenya. In this country, a mandatory sentence and minimum sentence can neither
be used interchangeably nor in similar circumstances as they refer to two very dierent set of meanings
and circumstances.
https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/34/eng@2024-07-12 20
58. In the Muruatetu case, this court solely considered the mandatory sentence of death under section
204 of the Penal Code as it is applied to murder cases; it did not address minimum sentences at all.
Therefore, mandatory sentences that apply for example to capital oences, are vastly dierent from
minimum sentences such as those found in the Sexual Offences Act, and the Penal Code. Often in
crafting dierent sentencing for criminal oences, the drafters of the law in the Legislature, take into
consideration a number of issues including deterrence of crime, enhancing public safety, sequestering
of dangerous oenders, and eliminating unjustiable sentencing disparities.
59. The amici in that context submitted, and we agree, that sterner sentences ensure that prejudicial
myths and stereotypes no longer culminate in lenient sentences that do not reect the gravity of sexual
oences. They cite instances in which the courts have been inuenced by myths that; attempted rape
is not a serious oence; the absence of separate physical injury renders the crime less serious; and, the
alleged relationship between the perpetrator and the victim diminishes the perpetrator’s culpability.
60. South Africa introduced minimum sentencing in 1997 through the Criminal Law Amendment Act
with the intention of reducing serious and violent crime, achieving consistency in sentencing and to
address public perceptions that the sentences meted out were not suciently severe. The Supreme
Court of Appeal in the case of S v Malgas 2001 (1) SACR 469 (SCA) para 25 explained and declared
the purpose of minimum sentences as follows:
“ In short, the legislature aimed at ensuring a severe, standardised and consistent response
from the courts to the commission of such [serious] crimes”
61. In response to a 1992 Special Report to Congress by the United States Sentencing Commission
denouncing mandatory minimum sentences, Robert Mueller, a former Assistant Attorney General,
defended mandatory minimum sentences on behalf of the Department of Justice in his article
‘Mandatory Minimum Sentencing’ published in the Federal Sentencing Reporter, Vol 4, No 4,
Turmoil over Relevant Conduct in the Ninth Circuit (Jan - Feb., 1992), pp 230- 233. He stated that,
through mandatory minimum sentence statutes, Congress sends a strong message that society would
not tolerate certain forms of criminal behaviour. Further, that mandatory minimum sentences deter
criminal activity by maximizing the certainty and predictability of incarceration for crimes that pose
serious threats to the nation’s quality of life such as drug tracking near schools. For him, mandatory
minimum sentences assure an absolute sentencing oor, allowing only departure above the stated
minimum.
62. Having so stated, we are aware that mandatory sentences and minimum sentences as punishment in law
have been commonly prescribed by legislatures worldwide but recently, various apex courts of several
countries such as Canada, USA, Australia, South Africa as well as the European Court of Human
Rights have struck down both mandatory life imprisonment as well as minimum sentences in an eort
to move towards the approach of proportionality in punishment based on the actual crime committed.
That is why the Supreme Court of the United States, which has actively challenged mandatory death
sentences since the early twentieth century, ruled in Miller v Alabama, 132 S Ct 2455 (2012) that
imposing mandatory life imprisonment without parole for juvenile oenders at the time of their
crimes violates the Eighth Amendment's prohibition on cruel and unusual punishments. Similarly,
the European Court of Human Rights has on several occasions applied the “grossly disproportionate
test,” for instance in the cases of Harkins and Edwards v United Kingdom, 2012 ECHR 45 and
Murray v Netherlands, 2016 ECHR 408 where the court found that mandatory sentences of life
imprisonment without the possibility of parole go against article 3 of the European Convention for the
Protection of Human Rights and Fundamental Freedoms on the prohibition from torture and inhuman
and degrading punishment. Canada has also actively struck down minimum mandatory sentences
https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/34/eng@2024-07-12 21
and recently a 9 Judge bench of the Supreme Court of Canada in R. v Safarzadeh Markhali, 2016
SCC 14, reiterated its Constitutional commitment for proportionality in sentences. In Australia, in
the case of Magaming v The Queen, (2013) 253 CLR 381 the High Court struck down minimum
mandatory sentence in the Migration Act nding that the statute usurped judicial power by granting
the prosecution oce the discretion to determine the minimum penalty to be imposed by allowing
them to elect which oences to charge suspects with.
63. Before Kenyan courts can determine whether or not the above trends and decisions are persuasive,
we reiterate that there ought to be a proper case led, presented and fully argued before the High
Court and escalated through the appropriate channels on the constitutional validity or otherwise
of minimum sentences or mandatory sentences other than for the oence of murder. This was our
approach and direction in Muruatetu which must remain binding to all courts below.
iii. Whether minimum sentences as prescribed in the Sexual Offences Act are unconstitutional and
(iv) whether courts have discretion to impose sentences below minimum those prescribed by
the Sexual Offences Act.
64. Returning to the issue of the constitutionality or otherwise of minimum sentences under the Sexual
Offences Act and discretion to mete out sentences under the said Act, we note that the Court of
Appeal failed to identify with precision the provisions of the Sexual Offences Act it was declaring
unconstitutional, left its declaration of unconstitutionality ambiguous, vague and bereft of specicity.
We nd this approach problematic in the realm of criminal law because such a declaration would
have grave eect on other convicted and sentenced persons who were charged with the same oence.
Inconsistency in sentences for the same oences would also create mistrust and unfairness in the
criminal justice system. Yet the fundamental issue of the constitutionality of the minimum sentence
may not have been properly led and fully argued before the superior courts below.
65. The proper procedure before reaching such a manifestly far-reaching nding would have been for there
to have been a specic plea for unconstitutionality raised before the appropriate court. This plea must
also be precise to a section or sections of a denite statute. The court must then juxtapose the impugned
provision against the Constitution before nding it unconstitutional and must also specify the reasons
for nding such impugned provision unconstitutional. The Court of Appeal in the present appeal did
not declare any particular provision of the Sexual Offences Act unconstitutional, failing to