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 (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 conated 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 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 Oce 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 Oences 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 oence of delement contrary to section 8(1) as read with section 8(3) of the Sexual Oences 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 Oences 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 (Oce 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 oences like murder were vastly dierent from minimum sentences such as those found in the Sexual Oences Act and Penal Code. iv. Whether a blanket determination declaring that minimum mandatory sentences prescribed under the Sexual Oences Act were unconstitutional could be issued. v. Whether courts had discretion to impose sentences below the minimum mandatory sentences as prescribed by the Sexual Oences Act.

Held

1. Article 164(3) of the Constitution dened 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 oended 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 Oences 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 eective 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 conated the concept of mandatory sentences with minimum sentences.

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 dierent denitions given to each of the two words.

9. The term ‘mandatory minimum’ could be found used in dierent 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 dierent 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 oences, were vastly dierent from minimum sentences such as those found in the Sexual Oences Act and the Penal Code. Often in crafting dierent sentencing for criminal oences, the drafters of the law in the legislature took into consideration several issues, including deterrence of crime, enhancing public safety, sequestering of dangerous oenders, and eliminating unjustiable sentencing disparities. Stern sentences ensured that prejudicial myths and stereotypes no longer culminated in lenient sentences that did not reect the gravity of sexual oences.

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 eort 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 oence 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 Oences Act it was declaring unconstitutional, leaving its declaration of unconstitutionality ambiguous, vague, and bereft of specicity. That approach was problematic in the realm of criminal law because such a declaration would have a grave eect on other convicted and sentenced persons who were charged with the same oence. Inconsistency in sentences for the same oences 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 specic plea for unconstitutionality raised before the appropriate court. That plea must also be precise to a section or sections of a denite 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 Oences 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.

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 specic 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. Suce 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 armed by the rst appellate court was lawful and remained lawful as long as section 8 of the Sexual Oences Act remained valid. The Court of Appeal had no jurisdiction to interfere with that sentence.