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JudgmentBenigno Kubasu Angasa VS The Republic6 min read

Benigno Kubasu Angasa VS The Republic

High Court at Milimani High Court · · Alexander Muasya Muteti

INTRODUCTION

1. The Petitioner vide a Petition dated 15 th September 2025 expressed to be brought under Articles 2(5), 19, 20, 21, 24, 27, 258, and 259 of the constitution of Kenya, 2010 and 23, and 165 of the constitution of Kenya 2010 sought the following reliefs:

a) A declaration that the sentence of 35 years imprisonment is a degrading punishment for subjecting the petitioner herein beyond the estimated profiled report of about 63.5 years on human beings.

(b) A declaration that the constitutional rights of the Petitioner under Article 19(2), 21(1)(2)(3) of the constitution have been violated for subjecting him beyond the concept of Normal Life Expectancy.

c) An effective order be made for the sentence be revised to one of twenty (20) years in respect to the concept of normal life expectancy on human beings.

d) Or that such other order(s) as this Honourable Court shall deem just.

2. The petitioner introduces an innovative ground to challenge the sentence of 35 years imprisonment that the learned honorable Justice Wakiaga in Criminal Case No. 57 of 2014 imposed on him for the offence of murder.

3. The petitioner raises what he has styled as the concept of “normal life expectancy on human beings” in order to persuade the court to reduce his sentence from 35 years imprisonment to 20 years imprisonment since according to him, the normal life expectancy of a human being is 63.5 years. According to him he is aged about 36 years and if he were to serve the full term of 35 years imprisonment, that would exceed normal life expectancy thus defeating the essence of imposing a prison term. The petition is supported by his affidavit sworn on 15 th September 2025 in which he avers that this honorable court has a mandate under Article 20, 165 (3) (a) of the constitution to determine the constitutionality of his sentence of 35 years.

4. In this courts view the petition by the applicant is a classic case of innovative litigation meant to achieve a reduction of sentence through a crafty and carefully calculated move.

RESPONSE BY THE STATE

5. The state responded to the Petition by raising the ground of jurisdiction arguing that since the 35 years sentence was imposed by a High Court Judge, this court has no jurisdiction to entertain the petition.

6. According to Mr. Mogere on that ground alone the Petition must fail. The Prosecutor submitted that once the court is persuaded on the ground of jurisdiction, then there would be no need to interrogate the matter any further.

ANALYSIS AND DETERMINATION

7. The argument on jurisdiction by the prosecution is compelling when one looks at the application fleetingly.

8. Counsel however missed the argument by the Petitioner that he was invoking the Jurisdiction of this court to determine the constitutionality of the sentence since according to him it exceeded the “normal life expectancy of a human being” and not that he simply wished to have his sentence reviewed by a judge of concurrent jurisdiction with the court that imposed the sentence.

9. The uniqueness of the petition is that it seeks to introduce in sentencing the concept of “normal life expectancy” as a consideration that courts should bear whenever they impose fixed terms of imprisonment intended to be served by an accused person in a particular case.

10. The sentencing guidelines published by the judiciary provide a useful guide to courts in exercising their discretion in sentencing. Among the considerations to be borne in mind are the personal circumstances of the accused.

11. The age of the accused is a factor but the court cannot with certainty tell how long a person is likely to live which is what this petitioner is asking the court to declare. The life expectancy of a person is dependent on a number of factors thus asking the courts to venture into the arena of pronouncing their sentences based on “normal life expectancy” of an individual is to introduce a subjective test in the exercise of discretion which has the potential of introducing personal biases in sentencing.

12. Courts must remain objective in sentencing so as to guard against the intrusion of personal prejudices in the noble task of sentencing.

13. The Black’s Law Dictionary 12 th Edition at page 1108 defines life expectancy as :- “life expectancy. (1848) 1. The period that a person of a given age and sex is expected to live, according to mortality tables. 2. The period that a given person is expected to live, taking into account individualized characteristics such as heredity, past and present diseases, and other relevant medical data. See MORTALITY TABLE; LIFE TABLE”

14. The Mortality table. (1843) is An organized chart of statistical data indicating life expectancies for people in various categories (such as age, family history, and chemical exposure). Mortality tables are usu. admissible in evidence. - Also termed actuarial table; expectancy table; mortuary table. Cf. LIFE TABLE.

15. In the World Bank Group Data Bank Section, Life expectancy at birth is derived from life tables and is based on sex- and age-specific death rates, or derived from male and female life expectancy at birth. Statistical concept(s): Life expectancy at birth used here is the average number of years a newborn is expected to live if mortality patterns at the time of its birth remain constant in the future. It reflects the overall mortality level of a population, and summarizes the mortality pattern that prevails across all age groups in a given year. It is calculated in a period life table which provides a snapshot of a population's mortality pattern at a given time.

16. The World Health Statistics 2025 report published by the World Health Organization (WHO) outlines global and regional life expectancy and Healthy Life Expectancy (HALE) estimates.

WHO Life Expectancy and HALE by Region (2025 Data Baseline)

WHO Region

Total Life Expectancy at Birth (Both Sexes)

Life Expectancy (Female)

Life Expectancy (Male)

Healthy Life Expectancy (HALE at Birth)

Global Average

73.1 years

75.6 years

70.6 years

63.5 years

African Region (AFRO)

64.5 years

66.2 years

62.8 years

56.3 years

Region of the Americas (AMRO)

77.2 years

80.1 years

74.3 years

66.8 years

South-East Asia Region (SEARO)

71.4 years

73.5 years

69.4 years

62.1 years

European Region (EURO)

78.4 years

81.6 years

75.2 years

68.3 years

Eastern Mediterranean Region (EMRO)

70.2 years

72.1 years

68.4 years

61.2 years

Western Pacific Region (WPRO)

77.7 years

80.8 years

74.8 years

68.9 years

17. The World Health Organization provides the above table as a guide to the various life expectancy categories.

18. Notably, there is no categorization known statistically or medically as “normal life expectancy” thus the petitioner in this case is clearly engaged in wishful thinking that has no scientific or statistical basis. The application therefore has no factual or legal basis.

19. The sentence of 35 years upon an individual aged 36 years is a sentence that is proper in law and can safely be served to full term by the accused(petitioner) during his life time considering that he is entitled to a remission of sentence if he remains of good behavior.

20. The court therefore has not been persuaded that there are discernible constitutional rights breaches as against the accused person to warrant the variation of the sentence imposed by the trial court.

21. The learned Honorable Justice Wakiaga exercises concurrent jurisdiction with this court thus the Petition is a non- starter to the extent that it invites this court to review the sentence imposed by the judge. See Owners of Motor Vessel “Lillian S” V Caltex Oil (Kenya) Ltd (Civil Appeal 50 of 1989) [1989] KECA 48 (KLR) (17 November 1989 (Judgment) where Nyarangi, JA held that: “jurisdiction is everything and without it a court cannot take any one more step in a proceeding. The court would be acting in futility if it were to entertain proceedings knowing too well that it lacks jurisdiction to entertain the matter.”

22. The petition is therefore dismissed in its entirety and the petitioner is advised to focus on serving the remainder of his term in the hope that he completes the same a changed man.

23. It is so ordered.
    Benigno Kubasu Angasa VS The Republic Benigno Kubasu Angasa VS The Republic