REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MAKUENI
H.C.C.R. MISC. APPLICATION NO. E029 OF 2024
BETWEEN
MUINDE KITHYAKA………………………………………................................APPLICANT
AND
REPUBLIC………………………………………………………………... ……RESPONDENT
RULING
1. The Applicant has moved this court vide an undated application brought under the provisions of Article49 and 50 of the Constitution of Kenya, Section 349 and 357 of the Criminal Procedure Code, Cap 75 Laws of Kenya, Rules 22 and 23 of the High Court organization and Administration Rules seeking for orders:-
i. The Honourable court be pleased to allow the Applicant to appeal out of time to enable the Applicant to appeal against his sentence for justice to prevail.
ii. That the Honourable court be pleased to note that this appeal if heard has very high chances of success.
2. The Application is supported by an affidavit sworn by the Applicant who states that he was charged and sentenced to life imprisonment in a case of defilement contrary to section 8(1)(2) of the Sexual Offences Act No. 3 of 2006 in criminal case No.1585 of 2013 before Honourable G.M MUTISO SRM and judgement delivered on 2 nd April,2015.
3. The applicant avers that he was the Appellant in High Court Criminal Appeal No.137 of 2017 at Makueni before C. Kariuki (J)where his appeal was unfortunately dismissed on 6 th June,2017. He avers that this appeal has very high chances if heard and determined.
4. The Applicant filed a petition of Appeal together with the notice of motion where he states that both courts below erred in law for failing to observe the life sentence is a degrading punishment as it meant spending the whole of his life in prison thereby contravening Article 25(a) in accordance with Article 28 of the Constitution.
5. That both courts below erred in law by failing to observe the life sentence is against the doctrine of rehabilitation thereby contravening section 4(c) of the sentencing policy guidelines.
6. That both courts below erred in law for failing to observe the life sentence was harsh, excessive and corporal punishment thereby contravening Article 29(d) of the Constitution.
7. That both courts below erred in law for failing to consider his elderly age in sentencing thereby contravening the jurisprudential reasoning in the case of Makumbi Sumbui Wanyeso, Court of Appeal Criminal Appeal No.110 of 2022 at Mombasa.
8. The Respondent has opposed the application through grounds of opposition dated 3 rd June,2025. They indicate that having been served with the application, they oppose the same on the grounds that the application is bad in law and without merit and thus should be dismissed in its entirety.
9. That the Applicant was charged with defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act No.3 of 2006 in Makindu MCCRC No.1585 of 2013 where the applicant was convicted and sentenced to life imprisonment.
10. That the Applicant dissatisfied with the decision of the trial court, filed an appeal in Machakos HCCRA No.103 of 2015 which later became Makueni HCCRA No. 137 of 2017 where the High court dismissed the appeal and sustained the conviction and sentence of the trial court.
11. They argue that this Honourable court already pronounced itself on the issue of sentence and conviction and thus this Honourable court cannot sit on its own appeal. That the minimum sentence for the offence of defilement under section 8(2) is life imprisonment hence the sentence meted out to the Applicant by the trial court is legal and safe.
12. That as held by the Supreme Court in the case of Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) [2024] KESC 34 (KLR) a court of law should not render a sentence more lenient than the minimum sentence provided by law and legally this honourable court cannot render a more lenient sentence than the minimum sentence of life imprisonment given by the trial court.
13. That the application is without merit and they beseech the court to dismiss it in its entirety.
14. The Applicant further filed his mitigation and submits that he was charged with defilement contrary to section 8(1) as read with Section 8(2) of the Sexual Offences Act No.3 of 2006 in Makindu criminal case No.1585 of 2013 and upon conviction, he was sentenced to life imprisonment. He indicates that he was aggrieved by the decision and he appealed to the High court at Makueni in Criminal Appeal No.137 of 2017 that was dismissed on 6th June,2017.
15. He argues that the application is premised on the supremacy of the new constitution with regard to the reasoning generated in criminal appeal No.110 of 2022 at Mombasa on the concept of normal life expectancy on human being.
16. The Applicant feels his right to life is threatened with violation in spending the whole of his life in prison considering his elderly age of 82 years. He finds the same sentence deprives him by shattering all his hopes to start a fresh as law abiding citizen and the demands of Article 57 of the Constitution.
17. The applicant is of the view that the reasoning in Francis Karioko Muruatetu & Another v Republic [2017]eKLR particularly on paragraph 10 equally applies to the imposition of a mandatory indeterminate life sentence, namely that such a sentence denies a convict facing life imprisonment the opportunity to be heard in mitigation when those facing lesser sentences are allowed to be heard in mitigation.
18. The applicant argues that this is an unjustifiable discrimination, unfair and repugnant to the principle of equality before the law under Article 27 of the Constitution. That in addition, an indeterminate sentence is in his view also inhumane treatment and violates the right to dignity under Article 28, and this court in this due respect be persuaded by the reasoning of the European Court of Human Rights in Vinter and others -vs- The United Kingdom (Application nos.66069/09,130/10 and 3896/10)[2016] III ECHR 317 (9 July 2013) that an indeterminate life sentence without any prospect of release or a possibility of review is degrading and inhuman punishment, and that it is now a principle in international law that all prisoners, including those serving life sentences, be offered the possibility of rehabilitation and the prospect of release if that rehabilitation is achieved.
19. The Appellant urges this court to embrace the jurisprudential reasoning in Makumbi Sumbui Wanyeso Criminal Appeal No.110 of 2022 at Mombasa where the court held that age of the offender was a factor to be considered in respect to the concept on normal life expectancy of human being.
20. That his only concern on this application is for this court to give due consideration whether an indefinite life imprisonment is constitutional and can be justified given the emerging norms of human decency and human rights reflected in our emerging jurisprudence. He urges this court to find the evolving jurisprudence is a product of purposive reading of Articles 27 and 28 of our Constitution as applied to sentencing.
21. The Applicant submits that Equality defined the full and equal enjoyment of all rights and fundamental freedoms while Article 28 speaks loudly on protection and respect for human dignity whereby every person has the inherent dignity and the right to have that dignity observed, respected and protected. That the applicant pursues justice in this court on matters equity and fairness before the law on protection of his human dignity on equal treatment and punishments of cruel, inhuman or degrading manner as in respect with the sentencing judgment of Criminal Appeal No.110 of 2022 at Mombasa in Makumbi Sumbui Wanyeso-Vs-Republic .
22. The appellant feels it was discriminatory when on his trial process the court failed to consider his mitigation as it is part of the trial process. He is of the view he ought to have been awarded the benefit on the role of mitigation under section 216 of the Criminal Procedure Code and the emerging jurisprudence as assessed in Paragraph 4.8.16(iv) on development of new jurisprudence after conviction, it is expected that trial courts shall have considered the said jurisprudence during sentencing under the principle of stare decisis.
23. The applicant submits that by reason of PARAGRAPH 10 OF MURUATEU 2 judgment and paragraph 4.8.16(iv) of the judiciary sentencing policy guidelines, 2023. This court to find merit in this application that the life imprisonment imposed against him is unconstitutional and finally rely on the reasoning in Wanyeso v Republic [2023] KECA 709 (KLR) in respect of paragraph 39 of the judgment that " It is therefore our view that the Attorney General should take legislative measures that would facilitate periodic review of sentences for convict who are either over 70 years of age or who have served sentences of over 20years imprisonment with a view to determining whether their continued incarceration is still justifiable or legally tenable."
24. The applicant herein submits that many academic writers in Human Rights have similarly concluded that life imprisonment without a realistic possibility of parole deprives the offender of any prospect of reforming and re-entering society and is tantamount to a “living death sentence", "death by incarceration", “virtual death sentence", “prolonged death penalty", “delayed death penalty", “death sentence without an execution date” and “the other death penalty".
25. He further submits that a review of the comparative jurisprudence from courts, from many jurisdictions in the past decade or so shows that there is a common acceptance that life imprisonment without the possibility of parole is antithetical to human rights and is considered cruel and degrading punishment because it takes away the realistic hope of release for those who have been sentenced to life imprisonment.
26. That indeed a jurisprudential trend is eminently palpable where many countries have explicitly substituted life imprisonment to a term sentence either through legislation or through judicial interpretation of the Bill of rights of the different countries. He submits that earlier this year Malaysia amended its penal code by varying life imprisonment with a specific number of years. That life imprisonment is now substituted with imprisonment for a term of not less than thirty years.
27. That the interpretation that favors the applicant herein this application is the equal treatment in respect of the sentencing judgement in Wanyeso v Republic [2023] KECA 709 (KLR) on paragraph 39 that convicts who have attained the age of more than 70 years be offered the possibility of release with regard to the concept of normal life expectancy.
28. That the reasoning generated in criminal appeal No.110 of 2022 at Mombasa should not only be limited to the original beneficiary but should be extended to be enforced and enjoyed by litigants of similar situation.
29. That it is his humble mitigation this court shall find that the reasoning in criminal appeal no.110 of 2022 at Mombasa applies to his case with equal force due to the fact that he is now ageing at 82 years and there is no any reasonable justification for continuation of being held in prison with the above jurisprudential reasoning at Mombasa.
30. The Applicant urges this court to find that he is equal before the law and retains equal treatment of the law by reason of Article 27 of the Constitution. That this court to find the period of eleven years he has served as enough punishment for the offence in question bearing in mind the circumstances of his case in accordance with his elderly age the emerging jurisprudence.
Analysis and Determination
31. I have considered the application. The applicant is seeking leave to file an appeal out of time and at the same time is asking the court to consider the applying the determination in Wanyeso v Republic [2023] KECA 709 (KLR)
to his case. About the leave to appeal out of time, it is evident that the application is mistaken. This is because this court already heard his appael and dismissed it.
About the application of Wanyeso- That case the was a second appeal from the judgement of the High Court sitting in Voi in Criminal Appeal No. 42 of 2018. From the judgement of the Magistrates Court , where the proceedings leading to the appeal before the High Court arose from a retrial that was ordered by the High Court upon allowing an earlier appeal led by the Appellant . The appellant, Makumbi Subui Wanyeso, was charged before the Voi Senior Resident Magistrate’s Court in Criminal Case No. 320 of 2009 with the offence of Defilement of a girl contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act. The particulars were that the Appellant on the night of September 11, 2007 at an unknown time in Taveta District within Coast Province, he unlawfully caused his penis to penetrate the vagina of EM, a girl aged 9 years. Based on the same facts he faced an alternative charge of Committing an Indecent Act with a child contrary to section 11(1) of the Sexual Offences Act. 3. The appellant pleaded not guilty at the trial and upon conducting a hearing, the Learned Trial Magistrate found him guilty of the offence, convicted him accordingly and sentenced him to life imprisonment, which according to the Learned Trial Magistrate was the prescribed sentence .
32. The Court of Appeal noted from the record that April 6, 2010, the prosecution applied for leave to amend the charge sheet which application was apparently allowed without hearing the appellant. That the amended charge sheet was read out to the appellant, however his view as to whether he wished to recall any of the witnesses who had testified was not sought.
33. the court observed:
In the matter before us, we are unable to tell whether the amendment in question prejudiced the appellant or not. Suffice it to state that first appellate court did not consider this aspect… In those circumstances, the court ordinarily makes an order for retrial. However, this is a matter in which a retrial has been ordered before …
34. The Court also considered the age of the appellant . By then he was 71 years old. The court stated; Due to the infirmity occasioned by his advanced age, he was even unable to adequately present his appeal before us. A retrial in those circumstances would be clearly futile .
35. This is the part of the case where the applicant says applies to him:
What has caused us concern is that those who are convicted for either long periods of time or for indeterminate sentences are left with no possibility of their conditions being reviewed since we do not have parole system in this country. Therefore such persons are subjected to the vagaries of harsh prison conditions even when it is clear that their continued stay in prison can no longer be justified under any of the penological grounds and to the contrary, is detrimental to the health of the prisoner and a burden to the prison authorities who have to take care of people who may well be in vegetative state. That the age of an accused person is a factor to be considered in sentencing was appreciated by this court in Ali Abdalla Mwanza v Republic [2018] eKLR where it held that:
“ In considering whether the sentence of 40 years was manifestly excessive, we have taken note of the latest health profile for Kenya compiled by the World Health Organization (WHO) data for 2018, on life expectancy which is indicated as 64.4 for male and 68.9 for the females and total life expectancy average as 66.7. of course, if one went to the specifics of the causes of death in Kenya, a fair percentage would be due to murders and other homicides but that is perhaps not for us to determine in this appeal although it has a bearing in considering sentencing as a deterrent. It is also trite that every case of sentencing should strictly be considered on its own circumstances as no one individual should be sent to prison purely to send a message to other would be offenders…In this case it is obvious to us if the appellant were to serve the entire 40 years sentence with the above life expectancy of about 67 years, the sentence would go beyond the life expectancy and in that case it would appear manifestly excessive. We say so because the Judge did not impose a death sentence or even a life sentence. When the Judge imposed a term sentence, to us it would appear, it was meant to be lower than life sentence. It is for the aforesaid reasons that we are of the view that if the trial Judge had taken the above matters into consideration, perhaps she would have considered a lesser term than 40 years. In the circumstances we partially allow the appeal and substitute the sentence of 40 years with a term of 20 years from the date of conviction.”
36. I completely agree with this decision in principle. I have held the position that the term ‘ life imprisonment’ requires to be defined. It should be distinct from a death sentence.
37. Our Prison system exists kurekebisha na haki and any sentences meted to persons convicted of offences ought to take into account the fact that offenders change, and that as a people we have put in place a criminal justice system, whose ultimate outcome cannot just be to lock up offenders for the sake of keeping them behind bars long after the need to do so has long passed. We have put up the Prison Services for rehabilitation as well, we do not seem to take the ‘ haki’ part seriously . We have in our laws long term imprisonment including life imprisonment, we ought to have in the criminal justice system another system that recognises when a convict has been rehabilitated and there is no longer any reason to hold them in custody. I am aware of the Power of Mercy Committee but the number of applications for revision coming before the court that ought to be dealt by that committee is an indicator that something there is not working.
38. The Supreme Court in Muruatetu case left it to Parliament to determine what a term of life imprisonment amounts to.
39. I repeat this here for emphasis : Therefore, such persons are subjected to the vagaries of harsh prison conditions even when it is clear that their continued stay in prison can no longer be justified under any of the penological grounds and to the contrary, is detrimental to the health of the prisoner and a burden to the prison authorities who have to take care of people who may well be in vegetative state. That the age of an accused person is a factor to be considered in sentencing
40. The applicant is 82 years old. he was sentenced for a sexual offence ,
41. In Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) [2024] KESC 34 (KLR) the Supreme Court in the case where the Court of Appeal had set aside the sentence in a SOA matter , had this to say:
Our findings hereinabove effectively lead us to the conclusion that the judgment of the Court of Appeal delivered on October 7, 2022 is one for setting aside. In any case, the sentence imposed by the trial court against the respondent and affirmed by the first appellate court was lawful and remains lawful as long as section 8 of the Sexual Offences Act remains valid. We reiterate that the Court of Appeal had no jurisdiction to interfere with that sentence.
42. The Applicant is seeking review of the sentence of life imprisonment meted to him by the trial court and affirmed by the High court on Appeal.
43. The Respondents have challenged the jurisdiction of this court on the ground that this court is functus officio as it heard the appeal and sustained the conviction and sentence.
44. It is not disputed that the application before court is seeking review/revision of the orders issued by this court on the 6 th day of June,2017. This court having heard and determined HCCRA 137 of 2017 and affirmed the sentence of life imprisonment, became functus officio in respect of that judgment.
45. The Applicant has relied in the reasoning in Francis Karioko Muruatetu & Another v Republic [2017]eKLR in arguing his case. It is, however, settled by the Supreme Court in Francis Karioko Muruatetu & Another v Republic; Katiba Institute & 5 Others (Amicus Curiae) [2021] eKLR (commonly referred to as Muruatetu II) that the decision in Muruatetu 1 applies strictly to the mandatory death sentence under section 204 of the Penal Code. The Supreme Court expressly clarified that its earlier decision did not invalidate mandatory or minimum sentences prescribed under other statutes, including the Sexual Offences Act.
46. If the Applicant remains aggrieved by the appellate judgment, his recourse lies before the Court of Appeal .
47. The applicant also has recourse in the Power of Mercy Committee who hands are not tied by the same jurisdictional limitations as this court as provided for under Article 133 of the Constitution
133. Power of mercy
(1) On the petition of any person, the President may exercise a power of mercy in accordance with the advice of the Advisory Committee established under clause (2), by—
(a) granting a free or conditional pardon to a person convicted of an offence;
(b) postponing the carrying out of a punishment, either for a specified or indefinite period;
(c) substituting a less severe form of punishment; or
(d) remitting all or part of a punishment.
48. In the circumstances, while the court empathizes with the applicant, the power or review is limited by the Constitution any person has the right under Article 50(2) (q) if convicted, to appeal to, or apply for review by, a higher court as prescribed by law. Article 165(7) is specific about the supervisory jurisdiction of the court the High Court may call for the record of any proceedings before any subordinate court or person, body or authority referred to in clause (6), and may make any order or give any direction it considers appropriate to ensure the fair administration of justice
49. Clearly this court is not empowered to review its own conviction/sentence.
50. For the foregoing reasons the application is declined.
51. The applicant to seek recourse in the higher court, Power of Mercy Committee.
RULING dated, signed abd delivered virtually this 15 th May 2026
Mumbua T Matheka
Judge
CA Chrispol
Applicant Present
Musyoki for State
IN THE HIGH COURT OF KENYA AT MAKUENI
H.C.C.R. MISC. APPLICATION NO. E029 OF 2024
BETWEEN
MUINDE KITHYAKA………………………………………................................APPLICANT
AND
REPUBLIC………………………………………………………………... ……RESPONDENT
RULING
1. The Applicant has moved this court vide an undated application brought under the provisions of Article49 and 50 of the Constitution of Kenya, Section 349 and 357 of the Criminal Procedure Code, Cap 75 Laws of Kenya, Rules 22 and 23 of the High Court organization and Administration Rules seeking for orders:-
i. The Honourable court be pleased to allow the Applicant to appeal out of time to enable the Applicant to appeal against his sentence for justice to prevail.
ii. That the Honourable court be pleased to note that this appeal if heard has very high chances of success.
2. The Application is supported by an affidavit sworn by the Applicant who states that he was charged and sentenced to life imprisonment in a case of defilement contrary to section 8(1)(2) of the Sexual Offences Act No. 3 of 2006 in criminal case No.1585 of 2013 before Honourable G.M MUTISO SRM and judgement delivered on 2 nd April,2015.
3. The applicant avers that he was the Appellant in High Court Criminal Appeal No.137 of 2017 at Makueni before C. Kariuki (J)where his appeal was unfortunately dismissed on 6 th June,2017. He avers that this appeal has very high chances if heard and determined.
4. The Applicant filed a petition of Appeal together with the notice of motion where he states that both courts below erred in law for failing to observe the life sentence is a degrading punishment as it meant spending the whole of his life in prison thereby contravening Article 25(a) in accordance with Article 28 of the Constitution.
5. That both courts below erred in law by failing to observe the life sentence is against the doctrine of rehabilitation thereby contravening section 4(c) of the sentencing policy guidelines.
6. That both courts below erred in law for failing to observe the life sentence was harsh, excessive and corporal punishment thereby contravening Article 29(d) of the Constitution.
7. That both courts below erred in law for failing to consider his elderly age in sentencing thereby contravening the jurisprudential reasoning in the case of Makumbi Sumbui Wanyeso, Court of Appeal Criminal Appeal No.110 of 2022 at Mombasa.
8. The Respondent has opposed the application through grounds of opposition dated 3 rd June,2025. They indicate that having been served with the application, they oppose the same on the grounds that the application is bad in law and without merit and thus should be dismissed in its entirety.
9. That the Applicant was charged with defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act No.3 of 2006 in Makindu MCCRC No.1585 of 2013 where the applicant was convicted and sentenced to life imprisonment.
10. That the Applicant dissatisfied with the decision of the trial court, filed an appeal in Machakos HCCRA No.103 of 2015 which later became Makueni HCCRA No. 137 of 2017 where the High court dismissed the appeal and sustained the conviction and sentence of the trial court.
11. They argue that this Honourable court already pronounced itself on the issue of sentence and conviction and thus this Honourable court cannot sit on its own appeal. That the minimum sentence for the offence of defilement under section 8(2) is life imprisonment hence the sentence meted out to the Applicant by the trial court is legal and safe.
12. That as held by the Supreme Court in the case of Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) [2024] KESC 34 (KLR) a court of law should not render a sentence more lenient than the minimum sentence provided by law and legally this honourable court cannot render a more lenient sentence than the minimum sentence of life imprisonment given by the trial court.
13. That the application is without merit and they beseech the court to dismiss it in its entirety.
14. The Applicant further filed his mitigation and submits that he was charged with defilement contrary to section 8(1) as read with Section 8(2) of the Sexual Offences Act No.3 of 2006 in Makindu criminal case No.1585 of 2013 and upon conviction, he was sentenced to life imprisonment. He indicates that he was aggrieved by the decision and he appealed to the High court at Makueni in Criminal Appeal No.137 of 2017 that was dismissed on 6th June,2017.
15. He argues that the application is premised on the supremacy of the new constitution with regard to the reasoning generated in criminal appeal No.110 of 2022 at Mombasa on the concept of normal life expectancy on human being.
16. The Applicant feels his right to life is threatened with violation in spending the whole of his life in prison considering his elderly age of 82 years. He finds the same sentence deprives him by shattering all his hopes to start a fresh as law abiding citizen and the demands of Article 57 of the Constitution.
17. The applicant is of the view that the reasoning in Francis Karioko Muruatetu & Another v Republic [2017]eKLR particularly on paragraph 10 equally applies to the imposition of a mandatory indeterminate life sentence, namely that such a sentence denies a convict facing life imprisonment the opportunity to be heard in mitigation when those facing lesser sentences are allowed to be heard in mitigation.
18. The applicant argues that this is an unjustifiable discrimination, unfair and repugnant to the principle of equality before the law under Article 27 of the Constitution. That in addition, an indeterminate sentence is in his view also inhumane treatment and violates the right to dignity under Article 28, and this court in this due respect be persuaded by the reasoning of the European Court of Human Rights in Vinter and others -vs- The United Kingdom (Application nos.66069/09,130/10 and 3896/10)[2016] III ECHR 317 (9 July 2013) that an indeterminate life sentence without any prospect of release or a possibility of review is degrading and inhuman punishment, and that it is now a principle in international law that all prisoners, including those serving life sentences, be offered the possibility of rehabilitation and the prospect of release if that rehabilitation is achieved.
19. The Appellant urges this court to embrace the jurisprudential reasoning in Makumbi Sumbui Wanyeso Criminal Appeal No.110 of 2022 at Mombasa where the court held that age of the offender was a factor to be considered in respect to the concept on normal life expectancy of human being.
20. That his only concern on this application is for this court to give due consideration whether an indefinite life imprisonment is constitutional and can be justified given the emerging norms of human decency and human rights reflected in our emerging jurisprudence. He urges this court to find the evolving jurisprudence is a product of purposive reading of Articles 27 and 28 of our Constitution as applied to sentencing.
21. The Applicant submits that Equality defined the full and equal enjoyment of all rights and fundamental freedoms while Article 28 speaks loudly on protection and respect for human dignity whereby every person has the inherent dignity and the right to have that dignity observed, respected and protected. That the applicant pursues justice in this court on matters equity and fairness before the law on protection of his human dignity on equal treatment and punishments of cruel, inhuman or degrading manner as in respect with the sentencing judgment of Criminal Appeal No.110 of 2022 at Mombasa in Makumbi Sumbui Wanyeso-Vs-Republic .
22. The appellant feels it was discriminatory when on his trial process the court failed to consider his mitigation as it is part of the trial process. He is of the view he ought to have been awarded the benefit on the role of mitigation under section 216 of the Criminal Procedure Code and the emerging jurisprudence as assessed in Paragraph 4.8.16(iv) on development of new jurisprudence after conviction, it is expected that trial courts shall have considered the said jurisprudence during sentencing under the principle of stare decisis.
23. The applicant submits that by reason of PARAGRAPH 10 OF MURUATEU 2 judgment and paragraph 4.8.16(iv) of the judiciary sentencing policy guidelines, 2023. This court to find merit in this application that the life imprisonment imposed against him is unconstitutional and finally rely on the reasoning in Wanyeso v Republic [2023] KECA 709 (KLR) in respect of paragraph 39 of the judgment that " It is therefore our view that the Attorney General should take legislative measures that would facilitate periodic review of sentences for convict who are either over 70 years of age or who have served sentences of over 20years imprisonment with a view to determining whether their continued incarceration is still justifiable or legally tenable."
24. The applicant herein submits that many academic writers in Human Rights have similarly concluded that life imprisonment without a realistic possibility of parole deprives the offender of any prospect of reforming and re-entering society and is tantamount to a “living death sentence", "death by incarceration", “virtual death sentence", “prolonged death penalty", “delayed death penalty", “death sentence without an execution date” and “the other death penalty".
25. He further submits that a review of the comparative jurisprudence from courts, from many jurisdictions in the past decade or so shows that there is a common acceptance that life imprisonment without the possibility of parole is antithetical to human rights and is considered cruel and degrading punishment because it takes away the realistic hope of release for those who have been sentenced to life imprisonment.
26. That indeed a jurisprudential trend is eminently palpable where many countries have explicitly substituted life imprisonment to a term sentence either through legislation or through judicial interpretation of the Bill of rights of the different countries. He submits that earlier this year Malaysia amended its penal code by varying life imprisonment with a specific number of years. That life imprisonment is now substituted with imprisonment for a term of not less than thirty years.
27. That the interpretation that favors the applicant herein this application is the equal treatment in respect of the sentencing judgement in Wanyeso v Republic [2023] KECA 709 (KLR) on paragraph 39 that convicts who have attained the age of more than 70 years be offered the possibility of release with regard to the concept of normal life expectancy.
28. That the reasoning generated in criminal appeal No.110 of 2022 at Mombasa should not only be limited to the original beneficiary but should be extended to be enforced and enjoyed by litigants of similar situation.
29. That it is his humble mitigation this court shall find that the reasoning in criminal appeal no.110 of 2022 at Mombasa applies to his case with equal force due to the fact that he is now ageing at 82 years and there is no any reasonable justification for continuation of being held in prison with the above jurisprudential reasoning at Mombasa.
30. The Applicant urges this court to find that he is equal before the law and retains equal treatment of the law by reason of Article 27 of the Constitution. That this court to find the period of eleven years he has served as enough punishment for the offence in question bearing in mind the circumstances of his case in accordance with his elderly age the emerging jurisprudence.
Analysis and Determination
31. I have considered the application. The applicant is seeking leave to file an appeal out of time and at the same time is asking the court to consider the applying the determination in Wanyeso v Republic [2023] KECA 709 (KLR)
to his case. About the leave to appeal out of time, it is evident that the application is mistaken. This is because this court already heard his appael and dismissed it.
About the application of Wanyeso- That case the was a second appeal from the judgement of the High Court sitting in Voi in Criminal Appeal No. 42 of 2018. From the judgement of the Magistrates Court , where the proceedings leading to the appeal before the High Court arose from a retrial that was ordered by the High Court upon allowing an earlier appeal led by the Appellant . The appellant, Makumbi Subui Wanyeso, was charged before the Voi Senior Resident Magistrate’s Court in Criminal Case No. 320 of 2009 with the offence of Defilement of a girl contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act. The particulars were that the Appellant on the night of September 11, 2007 at an unknown time in Taveta District within Coast Province, he unlawfully caused his penis to penetrate the vagina of EM, a girl aged 9 years. Based on the same facts he faced an alternative charge of Committing an Indecent Act with a child contrary to section 11(1) of the Sexual Offences Act. 3. The appellant pleaded not guilty at the trial and upon conducting a hearing, the Learned Trial Magistrate found him guilty of the offence, convicted him accordingly and sentenced him to life imprisonment, which according to the Learned Trial Magistrate was the prescribed sentence .
32. The Court of Appeal noted from the record that April 6, 2010, the prosecution applied for leave to amend the charge sheet which application was apparently allowed without hearing the appellant. That the amended charge sheet was read out to the appellant, however his view as to whether he wished to recall any of the witnesses who had testified was not sought.
33. the court observed:
In the matter before us, we are unable to tell whether the amendment in question prejudiced the appellant or not. Suffice it to state that first appellate court did not consider this aspect… In those circumstances, the court ordinarily makes an order for retrial. However, this is a matter in which a retrial has been ordered before …
34. The Court also considered the age of the appellant . By then he was 71 years old. The court stated; Due to the infirmity occasioned by his advanced age, he was even unable to adequately present his appeal before us. A retrial in those circumstances would be clearly futile .
35. This is the part of the case where the applicant says applies to him:
What has caused us concern is that those who are convicted for either long periods of time or for indeterminate sentences are left with no possibility of their conditions being reviewed since we do not have parole system in this country. Therefore such persons are subjected to the vagaries of harsh prison conditions even when it is clear that their continued stay in prison can no longer be justified under any of the penological grounds and to the contrary, is detrimental to the health of the prisoner and a burden to the prison authorities who have to take care of people who may well be in vegetative state. That the age of an accused person is a factor to be considered in sentencing was appreciated by this court in Ali Abdalla Mwanza v Republic [2018] eKLR where it held that:
“ In considering whether the sentence of 40 years was manifestly excessive, we have taken note of the latest health profile for Kenya compiled by the World Health Organization (WHO) data for 2018, on life expectancy which is indicated as 64.4 for male and 68.9 for the females and total life expectancy average as 66.7. of course, if one went to the specifics of the causes of death in Kenya, a fair percentage would be due to murders and other homicides but that is perhaps not for us to determine in this appeal although it has a bearing in considering sentencing as a deterrent. It is also trite that every case of sentencing should strictly be considered on its own circumstances as no one individual should be sent to prison purely to send a message to other would be offenders…In this case it is obvious to us if the appellant were to serve the entire 40 years sentence with the above life expectancy of about 67 years, the sentence would go beyond the life expectancy and in that case it would appear manifestly excessive. We say so because the Judge did not impose a death sentence or even a life sentence. When the Judge imposed a term sentence, to us it would appear, it was meant to be lower than life sentence. It is for the aforesaid reasons that we are of the view that if the trial Judge had taken the above matters into consideration, perhaps she would have considered a lesser term than 40 years. In the circumstances we partially allow the appeal and substitute the sentence of 40 years with a term of 20 years from the date of conviction.”
36. I completely agree with this decision in principle. I have held the position that the term ‘ life imprisonment’ requires to be defined. It should be distinct from a death sentence.
37. Our Prison system exists kurekebisha na haki and any sentences meted to persons convicted of offences ought to take into account the fact that offenders change, and that as a people we have put in place a criminal justice system, whose ultimate outcome cannot just be to lock up offenders for the sake of keeping them behind bars long after the need to do so has long passed. We have put up the Prison Services for rehabilitation as well, we do not seem to take the ‘ haki’ part seriously . We have in our laws long term imprisonment including life imprisonment, we ought to have in the criminal justice system another system that recognises when a convict has been rehabilitated and there is no longer any reason to hold them in custody. I am aware of the Power of Mercy Committee but the number of applications for revision coming before the court that ought to be dealt by that committee is an indicator that something there is not working.
38. The Supreme Court in Muruatetu case left it to Parliament to determine what a term of life imprisonment amounts to.
39. I repeat this here for emphasis : Therefore, such persons are subjected to the vagaries of harsh prison conditions even when it is clear that their continued stay in prison can no longer be justified under any of the penological grounds and to the contrary, is detrimental to the health of the prisoner and a burden to the prison authorities who have to take care of people who may well be in vegetative state. That the age of an accused person is a factor to be considered in sentencing
40. The applicant is 82 years old. he was sentenced for a sexual offence ,
41. In Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) [2024] KESC 34 (KLR) the Supreme Court in the case where the Court of Appeal had set aside the sentence in a SOA matter , had this to say:
Our findings hereinabove effectively lead us to the conclusion that the judgment of the Court of Appeal delivered on October 7, 2022 is one for setting aside. In any case, the sentence imposed by the trial court against the respondent and affirmed by the first appellate court was lawful and remains lawful as long as section 8 of the Sexual Offences Act remains valid. We reiterate that the Court of Appeal had no jurisdiction to interfere with that sentence.
42. The Applicant is seeking review of the sentence of life imprisonment meted to him by the trial court and affirmed by the High court on Appeal.
43. The Respondents have challenged the jurisdiction of this court on the ground that this court is functus officio as it heard the appeal and sustained the conviction and sentence.
44. It is not disputed that the application before court is seeking review/revision of the orders issued by this court on the 6 th day of June,2017. This court having heard and determined HCCRA 137 of 2017 and affirmed the sentence of life imprisonment, became functus officio in respect of that judgment.
45. The Applicant has relied in the reasoning in Francis Karioko Muruatetu & Another v Republic [2017]eKLR in arguing his case. It is, however, settled by the Supreme Court in Francis Karioko Muruatetu & Another v Republic; Katiba Institute & 5 Others (Amicus Curiae) [2021] eKLR (commonly referred to as Muruatetu II) that the decision in Muruatetu 1 applies strictly to the mandatory death sentence under section 204 of the Penal Code. The Supreme Court expressly clarified that its earlier decision did not invalidate mandatory or minimum sentences prescribed under other statutes, including the Sexual Offences Act.
46. If the Applicant remains aggrieved by the appellate judgment, his recourse lies before the Court of Appeal .
47. The applicant also has recourse in the Power of Mercy Committee who hands are not tied by the same jurisdictional limitations as this court as provided for under Article 133 of the Constitution
133. Power of mercy
(1) On the petition of any person, the President may exercise a power of mercy in accordance with the advice of the Advisory Committee established under clause (2), by—
(a) granting a free or conditional pardon to a person convicted of an offence;
(b) postponing the carrying out of a punishment, either for a specified or indefinite period;
(c) substituting a less severe form of punishment; or
(d) remitting all or part of a punishment.
48. In the circumstances, while the court empathizes with the applicant, the power or review is limited by the Constitution any person has the right under Article 50(2) (q) if convicted, to appeal to, or apply for review by, a higher court as prescribed by law. Article 165(7) is specific about the supervisory jurisdiction of the court the High Court may call for the record of any proceedings before any subordinate court or person, body or authority referred to in clause (6), and may make any order or give any direction it considers appropriate to ensure the fair administration of justice
49. Clearly this court is not empowered to review its own conviction/sentence.
50. For the foregoing reasons the application is declined.
51. The applicant to seek recourse in the higher court, Power of Mercy Committee.
RULING dated, signed abd delivered virtually this 15 th May 2026
Mumbua T Matheka
Judge
CA Chrispol
Applicant Present
Musyoki for State