The applicant is before this court through chamber summons that is undated but brutes and entitled in the matter of contravention of fundamental freedom and rights under article19(3) (a) 22(a) 23 (1) 27(1), 159(2) (a) (b) 165(3) (b), (d) (i) (ii) of the Constitution of Kenya 2010
Also in the matter of Machakos charcoal high court decision petition no. 17 of 2021, also in the matter of criminal miscellaneous application no. 33 of 2018 Makueni and from the original case file number 286 of 2017 Kilungu law courts.
The appellants position is that he was arrested tried and convicted on the 19th of April 2018 for the offense of gang rape he was sentenced to 15 years’ imprisonment. He filed a miscellaneous application number 33 of 2018 at Makueni High Court on the 7th May 2018 which was dismissed.
He has now brought this application following what he terms recent developments of the law following the decision in Philip Maingi and five others versus Republic [2022] eKLR.
His prayers that this court considers his mitigation and reviews his sentence following factors laid out in the decision concerning principles of a first offender Pursuant to the articles of the constitution he has cited here in above.
I have considered the application by the applicant.
He filed what he turned to be supplementary grounds of application in which he cited the case of Muruatetu, And sections 4(1) and (2) the probation of offender’s act cap 64 of the laws of Kenya
I have noted that the applicant had filed criminal appeal No. 19 of 2019 which was dismissed by Ong’udi J on 4th June 2019. on the ground that the sentence he was serving was the minimum mandatory sentence prescribed by law and the court could not interfere with it.
The Supreme Court in Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) [2024] KESC 34 (KLR) said this about the application of the Muruatetu decision in sexual offences;
It has been argued in justifying this state of affairs, 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 specifically dealt with the mandatory death sentence in respect of murder, the decision's expansive reasoning can be applied to other offenses 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 cases11.The ratio decidendi in the decision was summarized as follows:“69.Consequently, we find 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 specific reliefs. The ultimate determination was confined 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 offences other than murder, we direct in respect of other capital offences 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 filed, 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 find that in this matter the Court of Appeal did offend 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 effective 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.
In the circumstances the application fir review of the sentence on the strength of Muruatetu is untenable.
The applicant has recourse in the Court of Appeal.
This application is dismissed.
Dated, signed and delivered this 4th April 2025
Mumbua T Matheka
Judge
Also in the matter of Machakos charcoal high court decision petition no. 17 of 2021, also in the matter of criminal miscellaneous application no. 33 of 2018 Makueni and from the original case file number 286 of 2017 Kilungu law courts.
The appellants position is that he was arrested tried and convicted on the 19th of April 2018 for the offense of gang rape he was sentenced to 15 years’ imprisonment. He filed a miscellaneous application number 33 of 2018 at Makueni High Court on the 7th May 2018 which was dismissed.
He has now brought this application following what he terms recent developments of the law following the decision in Philip Maingi and five others versus Republic [2022] eKLR.
His prayers that this court considers his mitigation and reviews his sentence following factors laid out in the decision concerning principles of a first offender Pursuant to the articles of the constitution he has cited here in above.
I have considered the application by the applicant.
He filed what he turned to be supplementary grounds of application in which he cited the case of Muruatetu, And sections 4(1) and (2) the probation of offender’s act cap 64 of the laws of Kenya
I have noted that the applicant had filed criminal appeal No. 19 of 2019 which was dismissed by Ong’udi J on 4th June 2019. on the ground that the sentence he was serving was the minimum mandatory sentence prescribed by law and the court could not interfere with it.
The Supreme Court in Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) [2024] KESC 34 (KLR) said this about the application of the Muruatetu decision in sexual offences;
It has been argued in justifying this state of affairs, 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 specifically dealt with the mandatory death sentence in respect of murder, the decision's expansive reasoning can be applied to other offenses 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 cases11.The ratio decidendi in the decision was summarized as follows:“69.Consequently, we find 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 specific reliefs. The ultimate determination was confined 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 offences other than murder, we direct in respect of other capital offences 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 filed, 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 find that in this matter the Court of Appeal did offend 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 effective 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.
In the circumstances the application fir review of the sentence on the strength of Muruatetu is untenable.
The applicant has recourse in the Court of Appeal.
This application is dismissed.
Dated, signed and delivered this 4th April 2025
Mumbua T Matheka
Judge