[1] This Petition was filed by George Onyango Oluoch (hereinafter, the petitioner) on the grounds that he was charged with robbery with violence contrary to Section 296(2) of the Penal Code, Cap 63, in Homa Bay Chief Magistrate’s Criminal Case No. 1053 of 2005 ; and that after trial he was found guilty, convicted and sentenced to suffer death on the 6 th June 2007. He further averred that he lodged an appeal against his conviction and sentence in Homa Bay High Court Criminal Appeal No. 89 of 2014 ; which appeal was dismissed in its entirety. He filed a second appeal to the Court of Appeal in Kisumu vide Criminal Appeal No. 98 of 2016 which was also dismissed.
[2] The petitioner further averred that in the course of time, his death sentence was commuted to life imprisonment by His Excellency the President, and that he has been in custody for 20 years while serving an indeterminate sentence. He posited that an indeterminate life sentence with no possibility of release is not only cruel and degrading but also amounts to inhuman treatment; and therefore a violation of the Constitution. He relied on several provisions of the Constitution, particularly Articles 27, 28, 29 and 50 thereof. He accordingly prayed for the following reliefs:
[a] A declaration that the sentence of life imprisonment imposed on him offends Articles 27, 28, 29(a), (d) and (f), 50(2)(p) and (q) of the Constitution.
[b] An order that the life sentence that he is serving be substituted with a lenient definite sentence informed by the unique facts and circumstances of his case; and the same to run from the time he was arrested.
[c] Any other order which the court deems fits in the interest of justice.
[3] The Petition was supported by the petitioner’s own affidavit in which he reiterated the averments set out in the Petition.
[4] There is no indication that the respondents filed any response to the Petition. That notwithstanding, directions were given herein on 19 th February 2026 that the Petition be disposed of by way of written submissions. While the respondent complied, there is no indication that the petitioner filed any submissions. It is notable however that in his Petition and Supporting Affidavit, the petitioner included his legal arguments as well as authorities. For instance, at paragraph 8 of his Supporting Affidavit, the petitioner relied on Ramadhan & 8 others v Attorney General & another (Petition 5 of 2022 & Constitutional Petition 6 of 2022 (Consolidated) [2024] KEHC 1173 (KLR) (6 February 2024) (Judgment) in which a declaration was made that the mandatory nature of the death penalty as provided for under Sections 296(2) and 297(2) of the Penal Code is unconstitutional.
[5] The petitioner also relied on Mbugua & 9 others v Attorney General & 3 others [2025] KEHC 1248 (KLR) in which Sections 296(2) and 297(2) of the Penal Code were declared to be inconsistent with Article 28 of the Constitution in so far as they impinge on the petitioners’ right to dignity. Additionally, the petitioner made reference to Paragraph 1.3.1 of the Judiciary Sentencing Guidelines as to the objective of sentencing and averred that indefinite life sentence cannot be justified granted the emerging jurisprudential trend in many countries towards the substitution of indeterminate life sentence with a term sentence. He relied on Makoni v Prisons Commissioner , CCZ 8/16 Constitutional Application No. CCZ 48/15) [2016] ZWCC 8 (13 July 2016).
[6] At paragraph 22 of his Supporting Affidavit, the petitioner stated that it is for the courts to interpret the Bill of Rights broadly and liberally in order to give effect to the enforcement of rights provided for in the Constitution.
[7] On their part, the respondents reiterated the factual background of the Petition and stated that the petitioner was charged with robbery with violence and was convicted and sentenced to suffer death on 6 th June 2007. They further pointed out that the petitioners appeal to the High Court and to the Court of Appeal were both dismissed; and that the death sentence was subsequently commuted to life imprisonment by H.E. the President.
[8] The respondents also made reference to the salient averments set out in the Petition and its Supporting Affidavit and submitted that, in this instance, the Court lacks the jurisdiction to reconsider the issue of sentence after the Court of Appeal had dismissed the petitioner’s appeal. They posited that, if indeed the petitioner was dissatisfied with the decision of the Court of Appeal his next course of action was to lodge an appeal to the Supreme Court.
[9] Further to the foregoing, the respondents submitted that the petitioner had failed to demonstrate that there is newly discovered and compelling evidence to warrant the intervention of the Court pursuant to Article 50(6) (2) of the Constitution.
[10] With reference to the decision of the Supreme Court in Francis Krioko Muatctu & Another v Republic [2017] eKLR (Muruatetu I), the respondents pointed out that, initially there was an assumption that decision was applicable to all offences with mandatory sentences. They submitted that, as a consequence, there was also an avalanche of applications by prisoners seeking sentence review until the Supreme Court clarified that Muruatetu I applied only to murder cases under Section 203 and 204 of the Penal Code and not robbery with violence, defilement and other mandatory minimum sentences provided for in law.
[11] It was therefore the submission of the respondents that Section 296(2) of the Penal Code is valid until repealed or amended by Parliament. Accordingly, they prayed for the dismissal of the Petition.
[12] I have carefully considered the Petition, the Supporting Affidavit and the submissions filed by the respondent. It is common ground that the petitioner appealed his conviction and sentence; and that his appeals both to the High Court and the Court of Appeal were dismissed. He filed this Petition on the basis of the decision of the Supreme Court in Muruatetu I , in which the apex court held that:
“[58] To our minds, any law or procedure which when executed culminates in termination of life, ought to be just, fair and reasonable. As a result, due process is made possible by a procedure which allows the Court to assess the appropriateness of the death penalty in relation to the circumstances of the offender and the offence. We are of the view that the mandatory nature of this penalty runs counter to constitutional guarantees enshrining respect for the rule of law.
[59] We now lay to rest the quagmire that has plagued the courts with regard to the mandatory nature of Section 204 of the Penal Code. We do this by determining that any court dealing with the offence of murder is allowed to exercise judicial discretion by considering any mitigating factors, in sentencing an accused person charged with and found guilty of that offence. To do otherwise will render a trial, with the resulting sentence under Section 204 of the Penal Code, unfair thereby conflicting with Articles 25 (c), 28, 48 and 50 (1) and (2)(q) of the Constitution .”
[13] The Supreme Court then added at paragraph 69 of its Judgment that:
"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."
[14] Thereafter, the position taken by many courts was that the ratio decidendi in Muruatetu I was applicable to all cases in which the penalty provided for was death, including robbery with violence and attempted robbery with violence under Sections 292(1) and 297(2) of the Penal Code. This explains the decisions made in the cases cited by the petitioner. The Court of Appeal also had occasion to pronounce itself on the matter in William Okungu Kittiny v Republic [2018] eKLR, as follows:
"The appellant was sentenced to death for robbery with violence under Section 296(2). The punishment provided for murder under Section 203 as read with Section 204 and for robbery with violence and attempted robbery with violence under Section 296(2) and 297(2) is death. By Article 27(1) of the Constitution, every person has inter alia, the right to equal protection and equal benefit of the law. Although the Muruatetu's case specifically dealt with the death sentence for murder, the decision broadly considered the constitutionality of the death sentence in general. In the Mutiso Case which was affirmed by the Supreme Court, the Court of Appeal said obiter that the arguments set out in that case in respect of Section 203 as read with Section 204 of the Penal Code might apply to other capital offences. Moreover, the Supreme Court in paragraph 111 referred to similar mandatory death sentences. From the foregoing, we hold that the findings and holding of the Supreme Court particularly in paragraph 69 applies mutatis mutandis to Section 296(2) and 297(2) of the Penal Code. Thus, the sentence of death under Section 206(2) and 297(2) of the Penal Code is a discretionary maximum punishment..."
[15] In fact, the ratio decidendi was extended even further to sentences passed under the Sexual Offences Act. In one of the cases, Jared Koita Injiri v Republic [2019] eKLR, the Court of Appeal held:
Arising from the decision in Francis Karioko Muruatetu & Another vs Republic, SC Pet. No. 16 of 2015 where the Supreme Court held that the mandatory death sentence prescribed for the offence of murder by section 204 of the Penal Code was unconstitutional. The Court took the view that;
“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 an appropriate case. Where a Court listens to mitigating circumstances but has, nevertheless, to impose a set sentence, the sentence imposed fails to conform to the tenets of fair trial that accrue to the accused persons under the Article 25 of the Constitution; an absolute right.”
In this case the appellant was sentenced to life imprisonment on the basis of the mandatory sentence stipulated by section 8 (1) of the Sexual Offences Act , and if the reasoning in the Supreme Court case was applied to this provision, it too should be considered unconstitutional on the same basis."
[16] The Supreme Court thereafter found it necessary to release guideline directions in Muruatetu & another v Republic; Katiba Institute & 5 others (Amicus Curiae) (Petition 15 & 16 of 2015) [2021] KESC 31 (KLR) (6 July 2021) (Directions) (Muruatetu II) and, at paragraphs 11, 12 and 14 thereof the Supreme Court stated thus:
[11] 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”.
[12] 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.”
[17] In the premises, Muruatetu I, as well as the persuasive cases of Ramadhan and Mbugua cannot be of any help to the petitioner’s cause. Indeed, the Supreme Court reiterated its position in Muruatetu II in Republic v Manyeso (Petition E013 of 2024) [2025] KESC 16 (KLR) (11 April 2025) (Judgment) as hereunder:
64. Paragraph 11 to 14 of the Muruatetu directions are very clear that the decision in the Muruatetu case did not invalidate mandatory sentences or minimum sentences in the Penal Code , Sexual Offences Act or any other statute. Further, that the Muruatetu case cannot be said to be the authority for stating that all provisions of the law prescribing minimum sentences are inconsistent with the Constitution .
[18] In respect of life imprisonment for an indeterminate period of time, the Supreme Court held as follows in the Manyeso case (supra), albeit within the context of the Sexual Offences Act:
Paragraphs 93 to 97 of the Muruatetu decision are also explicit that it is not for the court to define what constitutes a life sentence. While we appreciated that a life sentence could mean a certain minimum or maximum time to be set by a judicial officer, this court made the following recommendations to the Attorney General to develop legislation on what constitutes a life sentence:
94. We recognize that although the Judiciary released elaborate and comprehensive Sentencing Policy Guidelines in 2016, there are no specific provisions for the sentence of life imprisonment, because it is an indeterminate sentence. Nevertheless, we are in agreement with the High Court decision in Jackson Wangui, supra, which found that it is not for the court to define what constitutes a life sentence or what number of years must first be served by a prisoner on life sentence before they are considered on parole. This is a function within the realm of the Legislature.
95. We also acknowledge that in Kenya and internationally, sentencing should not only be used for the purpose of retribution, it is also for the rehabilitation of the prisoner as well as for the protection of civilians who may be harmed by some prisoners. We find the comparative jurisprudence with regard to the indeterminate life sentence is compelling. We find that a life sentence should not necessarily mean the natural life of the prisoner; it could also mean a certain minimum or maximum time to be set by the relevant judicial officer along established parameters of criminal responsibility, retribution, rehabilitation and recidivism.
96. We therefore recommend that the Attorney General and Parliament commence an enquiry and develop legislation on the definition of ‘what constitutes a life sentence’; this may include a minimum number of years to be served before a prisoner is considered for parole or remission, or provision for prisoners under specific circumstances to serve whole life sentences. This will be in tandem with the objectives of sentencing.
65. From the above paragraphs of the Muruatetu case any reading of that decision ought to lead to the conclusion that it is upon the Legislature to enact legislation on what constitutes a life sentence and not the courts.
…
70. Our findings hereinabove effectively lead us to the conclusion that the Judgement of the Court of Appeal delivered on July 7, 2023 is one for setting aside. The Court of Appeal did not have jurisdiction to interfere with the sentence imposed by the trial court and affirmed by the first appellate court. Consequently, the life imprisonment sentence remains lawful and in line with section 8 of the Sexual Offences Act . (Emphasis supplied)
[19] The Supreme Court having pronounced itself on the matter, this Court has no jurisdiction to rule otherwise in fidelity to the doctrine of stare decisis . In Republic v Ayako (Petition E002 of 2024) [2025] KESC 20 (KLR) (11 April 2025) (Judgment) the Supreme Court pointed out that:
This court has underscored the importance, fidelity and centrality of respecting and observing the doctrine of stare decisis . It serves as a reference point, and ensures that there is consistency, certainty and predictability in the administration of the law which in turn, enhances confidence in the justice system. Stare decisis sets the baseline of how people conduct their everyday affairs and how they transact with the State. See Asanyo & 3 Others v Attorney- General , (Petition 7 of 2019) [2020] KESC 62 ( KLR ).
[20] The upshot is that the Petition lacks merit and is hereby dismissed.
It is so ordered.
DATED, SIGNED AND DELIVERED VIRTUALLY THIS 25 TH DAY OF JUNE 2026
[2] The petitioner further averred that in the course of time, his death sentence was commuted to life imprisonment by His Excellency the President, and that he has been in custody for 20 years while serving an indeterminate sentence. He posited that an indeterminate life sentence with no possibility of release is not only cruel and degrading but also amounts to inhuman treatment; and therefore a violation of the Constitution. He relied on several provisions of the Constitution, particularly Articles 27, 28, 29 and 50 thereof. He accordingly prayed for the following reliefs:
[a] A declaration that the sentence of life imprisonment imposed on him offends Articles 27, 28, 29(a), (d) and (f), 50(2)(p) and (q) of the Constitution.
[b] An order that the life sentence that he is serving be substituted with a lenient definite sentence informed by the unique facts and circumstances of his case; and the same to run from the time he was arrested.
[c] Any other order which the court deems fits in the interest of justice.
[3] The Petition was supported by the petitioner’s own affidavit in which he reiterated the averments set out in the Petition.
[4] There is no indication that the respondents filed any response to the Petition. That notwithstanding, directions were given herein on 19 th February 2026 that the Petition be disposed of by way of written submissions. While the respondent complied, there is no indication that the petitioner filed any submissions. It is notable however that in his Petition and Supporting Affidavit, the petitioner included his legal arguments as well as authorities. For instance, at paragraph 8 of his Supporting Affidavit, the petitioner relied on Ramadhan & 8 others v Attorney General & another (Petition 5 of 2022 & Constitutional Petition 6 of 2022 (Consolidated) [2024] KEHC 1173 (KLR) (6 February 2024) (Judgment) in which a declaration was made that the mandatory nature of the death penalty as provided for under Sections 296(2) and 297(2) of the Penal Code is unconstitutional.
[5] The petitioner also relied on Mbugua & 9 others v Attorney General & 3 others [2025] KEHC 1248 (KLR) in which Sections 296(2) and 297(2) of the Penal Code were declared to be inconsistent with Article 28 of the Constitution in so far as they impinge on the petitioners’ right to dignity. Additionally, the petitioner made reference to Paragraph 1.3.1 of the Judiciary Sentencing Guidelines as to the objective of sentencing and averred that indefinite life sentence cannot be justified granted the emerging jurisprudential trend in many countries towards the substitution of indeterminate life sentence with a term sentence. He relied on Makoni v Prisons Commissioner , CCZ 8/16 Constitutional Application No. CCZ 48/15) [2016] ZWCC 8 (13 July 2016).
[6] At paragraph 22 of his Supporting Affidavit, the petitioner stated that it is for the courts to interpret the Bill of Rights broadly and liberally in order to give effect to the enforcement of rights provided for in the Constitution.
[7] On their part, the respondents reiterated the factual background of the Petition and stated that the petitioner was charged with robbery with violence and was convicted and sentenced to suffer death on 6 th June 2007. They further pointed out that the petitioners appeal to the High Court and to the Court of Appeal were both dismissed; and that the death sentence was subsequently commuted to life imprisonment by H.E. the President.
[8] The respondents also made reference to the salient averments set out in the Petition and its Supporting Affidavit and submitted that, in this instance, the Court lacks the jurisdiction to reconsider the issue of sentence after the Court of Appeal had dismissed the petitioner’s appeal. They posited that, if indeed the petitioner was dissatisfied with the decision of the Court of Appeal his next course of action was to lodge an appeal to the Supreme Court.
[9] Further to the foregoing, the respondents submitted that the petitioner had failed to demonstrate that there is newly discovered and compelling evidence to warrant the intervention of the Court pursuant to Article 50(6) (2) of the Constitution.
[10] With reference to the decision of the Supreme Court in Francis Krioko Muatctu & Another v Republic [2017] eKLR (Muruatetu I), the respondents pointed out that, initially there was an assumption that decision was applicable to all offences with mandatory sentences. They submitted that, as a consequence, there was also an avalanche of applications by prisoners seeking sentence review until the Supreme Court clarified that Muruatetu I applied only to murder cases under Section 203 and 204 of the Penal Code and not robbery with violence, defilement and other mandatory minimum sentences provided for in law.
[11] It was therefore the submission of the respondents that Section 296(2) of the Penal Code is valid until repealed or amended by Parliament. Accordingly, they prayed for the dismissal of the Petition.
[12] I have carefully considered the Petition, the Supporting Affidavit and the submissions filed by the respondent. It is common ground that the petitioner appealed his conviction and sentence; and that his appeals both to the High Court and the Court of Appeal were dismissed. He filed this Petition on the basis of the decision of the Supreme Court in Muruatetu I , in which the apex court held that:
“[58] To our minds, any law or procedure which when executed culminates in termination of life, ought to be just, fair and reasonable. As a result, due process is made possible by a procedure which allows the Court to assess the appropriateness of the death penalty in relation to the circumstances of the offender and the offence. We are of the view that the mandatory nature of this penalty runs counter to constitutional guarantees enshrining respect for the rule of law.
[59] We now lay to rest the quagmire that has plagued the courts with regard to the mandatory nature of Section 204 of the Penal Code. We do this by determining that any court dealing with the offence of murder is allowed to exercise judicial discretion by considering any mitigating factors, in sentencing an accused person charged with and found guilty of that offence. To do otherwise will render a trial, with the resulting sentence under Section 204 of the Penal Code, unfair thereby conflicting with Articles 25 (c), 28, 48 and 50 (1) and (2)(q) of the Constitution .”
[13] The Supreme Court then added at paragraph 69 of its Judgment that:
"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."
[14] Thereafter, the position taken by many courts was that the ratio decidendi in Muruatetu I was applicable to all cases in which the penalty provided for was death, including robbery with violence and attempted robbery with violence under Sections 292(1) and 297(2) of the Penal Code. This explains the decisions made in the cases cited by the petitioner. The Court of Appeal also had occasion to pronounce itself on the matter in William Okungu Kittiny v Republic [2018] eKLR, as follows:
"The appellant was sentenced to death for robbery with violence under Section 296(2). The punishment provided for murder under Section 203 as read with Section 204 and for robbery with violence and attempted robbery with violence under Section 296(2) and 297(2) is death. By Article 27(1) of the Constitution, every person has inter alia, the right to equal protection and equal benefit of the law. Although the Muruatetu's case specifically dealt with the death sentence for murder, the decision broadly considered the constitutionality of the death sentence in general. In the Mutiso Case which was affirmed by the Supreme Court, the Court of Appeal said obiter that the arguments set out in that case in respect of Section 203 as read with Section 204 of the Penal Code might apply to other capital offences. Moreover, the Supreme Court in paragraph 111 referred to similar mandatory death sentences. From the foregoing, we hold that the findings and holding of the Supreme Court particularly in paragraph 69 applies mutatis mutandis to Section 296(2) and 297(2) of the Penal Code. Thus, the sentence of death under Section 206(2) and 297(2) of the Penal Code is a discretionary maximum punishment..."
[15] In fact, the ratio decidendi was extended even further to sentences passed under the Sexual Offences Act. In one of the cases, Jared Koita Injiri v Republic [2019] eKLR, the Court of Appeal held:
Arising from the decision in Francis Karioko Muruatetu & Another vs Republic, SC Pet. No. 16 of 2015 where the Supreme Court held that the mandatory death sentence prescribed for the offence of murder by section 204 of the Penal Code was unconstitutional. The Court took the view that;
“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 an appropriate case. Where a Court listens to mitigating circumstances but has, nevertheless, to impose a set sentence, the sentence imposed fails to conform to the tenets of fair trial that accrue to the accused persons under the Article 25 of the Constitution; an absolute right.”
In this case the appellant was sentenced to life imprisonment on the basis of the mandatory sentence stipulated by section 8 (1) of the Sexual Offences Act , and if the reasoning in the Supreme Court case was applied to this provision, it too should be considered unconstitutional on the same basis."
[16] The Supreme Court thereafter found it necessary to release guideline directions in Muruatetu & another v Republic; Katiba Institute & 5 others (Amicus Curiae) (Petition 15 & 16 of 2015) [2021] KESC 31 (KLR) (6 July 2021) (Directions) (Muruatetu II) and, at paragraphs 11, 12 and 14 thereof the Supreme Court stated thus:
[11] 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”.
[12] 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.”
[17] In the premises, Muruatetu I, as well as the persuasive cases of Ramadhan and Mbugua cannot be of any help to the petitioner’s cause. Indeed, the Supreme Court reiterated its position in Muruatetu II in Republic v Manyeso (Petition E013 of 2024) [2025] KESC 16 (KLR) (11 April 2025) (Judgment) as hereunder:
64. Paragraph 11 to 14 of the Muruatetu directions are very clear that the decision in the Muruatetu case did not invalidate mandatory sentences or minimum sentences in the Penal Code , Sexual Offences Act or any other statute. Further, that the Muruatetu case cannot be said to be the authority for stating that all provisions of the law prescribing minimum sentences are inconsistent with the Constitution .
[18] In respect of life imprisonment for an indeterminate period of time, the Supreme Court held as follows in the Manyeso case (supra), albeit within the context of the Sexual Offences Act:
Paragraphs 93 to 97 of the Muruatetu decision are also explicit that it is not for the court to define what constitutes a life sentence. While we appreciated that a life sentence could mean a certain minimum or maximum time to be set by a judicial officer, this court made the following recommendations to the Attorney General to develop legislation on what constitutes a life sentence:
94. We recognize that although the Judiciary released elaborate and comprehensive Sentencing Policy Guidelines in 2016, there are no specific provisions for the sentence of life imprisonment, because it is an indeterminate sentence. Nevertheless, we are in agreement with the High Court decision in Jackson Wangui, supra, which found that it is not for the court to define what constitutes a life sentence or what number of years must first be served by a prisoner on life sentence before they are considered on parole. This is a function within the realm of the Legislature.
95. We also acknowledge that in Kenya and internationally, sentencing should not only be used for the purpose of retribution, it is also for the rehabilitation of the prisoner as well as for the protection of civilians who may be harmed by some prisoners. We find the comparative jurisprudence with regard to the indeterminate life sentence is compelling. We find that a life sentence should not necessarily mean the natural life of the prisoner; it could also mean a certain minimum or maximum time to be set by the relevant judicial officer along established parameters of criminal responsibility, retribution, rehabilitation and recidivism.
96. We therefore recommend that the Attorney General and Parliament commence an enquiry and develop legislation on the definition of ‘what constitutes a life sentence’; this may include a minimum number of years to be served before a prisoner is considered for parole or remission, or provision for prisoners under specific circumstances to serve whole life sentences. This will be in tandem with the objectives of sentencing.
65. From the above paragraphs of the Muruatetu case any reading of that decision ought to lead to the conclusion that it is upon the Legislature to enact legislation on what constitutes a life sentence and not the courts.
…
70. Our findings hereinabove effectively lead us to the conclusion that the Judgement of the Court of Appeal delivered on July 7, 2023 is one for setting aside. The Court of Appeal did not have jurisdiction to interfere with the sentence imposed by the trial court and affirmed by the first appellate court. Consequently, the life imprisonment sentence remains lawful and in line with section 8 of the Sexual Offences Act . (Emphasis supplied)
[19] The Supreme Court having pronounced itself on the matter, this Court has no jurisdiction to rule otherwise in fidelity to the doctrine of stare decisis . In Republic v Ayako (Petition E002 of 2024) [2025] KESC 20 (KLR) (11 April 2025) (Judgment) the Supreme Court pointed out that:
This court has underscored the importance, fidelity and centrality of respecting and observing the doctrine of stare decisis . It serves as a reference point, and ensures that there is consistency, certainty and predictability in the administration of the law which in turn, enhances confidence in the justice system. Stare decisis sets the baseline of how people conduct their everyday affairs and how they transact with the State. See Asanyo & 3 Others v Attorney- General , (Petition 7 of 2019) [2020] KESC 62 ( KLR ).
[20] The upshot is that the Petition lacks merit and is hereby dismissed.
It is so ordered.
DATED, SIGNED AND DELIVERED VIRTUALLY THIS 25 TH DAY OF JUNE 2026