[1] Before the Court for determination is the Notice of Motion dated 21 st June 2024. It was filed pursuant to Articles 35(1), 50 and 165(3) of the Constitution as well as Section 6 of the Criminal Procedure Code, Cap 75 of the Laws of Kenya for the following orders:
[a] That there be an order directed to the officer in charge of Kisumu Maximum Prison (Kodiaga) to issue documents to the applicants commuting their death sentence to life imprisonment .
[b] That the applicants’ indefinite life sentence be converted to a definite time in prison of not more than 30 years.
[c] That costs be provided for.
[2] The application was premised on the grounds that the applicants were sentenced to death by the High Court sometimes in the year 2016, which sentence was upheld by the Court of Appeal. They further averred that, through presidential pardon, their sentence was commuted to life imprisonment but that they cannot be released without a court order. They contended that the Court of Appeal has defined life sentence to mean 30 years’ imprisonment and therefore it is in the interest of justice that the orders sought be granted. They added that, unless their prayers are granted they are likely to be detained indefinitely, thereby violating their right to liberty.
[3] They relied on their Supporting Affidavit sworn by Samuel Onyango Aroko, the 1 st applicant, in which they reiterated the grounds aforestated. They also deposed that, while in prison, they have been able to acquire skills to enable them live as useful members of the society should they be released upon serving a definite prison term.
[4] The application was opposed by the respondent; to which end the respondent filed Grounds of Opposition dated 3 rd March 2025 contending that:
[a] Being dissatisfied with the decision of Court, the applicants filed an appeal at the Court of Appeal against their conviction and sentence, namely, Criminal Appeal 120 of 2016; which appeal was dismissed.
[b] Court has since been rendered functus officio .
[c] The applicants have raised a pertinent issue touching on the violation of their constitutional rights, which can be addressed through a Constitutional petition.
[d] The applicants’ Notice of Motion dated 2lst June 2024 lacks merit, is an abuse of the court process and ought to be dismissed.
[5] The application was canvassed by way of written submissions. Accordingly, the applicants relied on their written submissions dated 27 th March 2025. They reiterated the factual basis of their application and relied on the decision of the Court of Appeal in Evans Nyamari Ayako Versus Republic, Criminal Appeal No. 22 of 2018 (Kisumu) rendered in December 2023 in which life imprisonment was determined to equate to 30 years as opposed to the natural lifespan of an offender. They submitted that they have served over 10 years in prison and have, in the process reformed. The applicants produced various certificates as well as a letter from the prison indicating that they have reformed and should be allowed back to the society.
[6] The applicants further submitted that the Court has jurisdiction under Article 165 of the Constitution to grant the prayers sought. They also relied on Jona & 87 others v Kenya Prison Service & 2 others [2021] KEHC 457 (KLR) to underscore their submission that the Court has jurisdiction to grant the prayers sought notwithstanding that they have exhausted their right of appeal. In that matter the court held as follows:
“44.What then is the position where as a result of the failure to apply the said provisions, a person has exhausted his appellate options? In my view, unless the sentence was substituted by the appellate court, the same position applies. Where the appellate court considered the appeal and disallowed the same without interfering with the sentence, it is clear that the decision on sentencing remains that of the trial court and if that sentence was imposed in contravention of the provisions of section 333(2) of the Criminal Procedure Code, nothing bars this court in the exercise of its constitutional mandate pursuant to article 165 of the Constitution from redressing the situation. Accordingly, notwithstanding a dismissal of an appeal, a person sentenced in disregard of section 333(2) aforesaid is not thereby disentitled from invoking this court’s supervisory jurisdiction to consider whether or not the sentence imposed was lawful. While it may be argued that in so doing this court would be interfering with the decision of the appellate court which in effect affirmed the decision of the trial court, in my respectful view that would not be the position where an appeal is simply dismissed without the sentence being reviewed. Even if the same was reviewed, the jurisprudence in this country holds to the contrary.
[7] The applicants also placed reliance on Protus Buliba Shikuku v Attorney General [2012] eKLR where the High Court while addressing the question of jurisdiction to hear a matter which the Court of Appeal had determined on the merits held:-
“(9)In a unique way the superior court is being asked to interfere with a decision of the court of appeal. We are in agreement that article 23 of the current 2010 Constitution as read with article 165(1)(3)(a)(b)(d)(i)(ii) have donated the same mandate without exception to this superior court and for this reason of donation of jurisdiction without exception we feel confident that we are properly seized of the petitioner's complaints which arise from an alleged act of omission or commission by the courts of this jurisdiction as laid out in the petition.
(10)That the petitioner’s complaints in the petition having been anchored on an alleged breach of a fundamental right, the legal prescriptions assessed under the article 2(5) of the 2010 Constitution as emanating from International Law Best Practices are in agreement with the current Municipal prescriptions as assessed that there are key principles which should be taken into consideration when dealing with complaints such as those laid by the petitioner namely:-
(a)Equality before the law courts, tribunals and equal protection of the law is a fundamental right.
(b)A right to have one’s cause heard irrespective of its ultimate success is of paramount importance.
(c)There is entitlement to a right to an effective remedy meaning one which is capable of enforcement with a leaning towards conferring of a right.
(d)The sole purpose of enforcement of human rights is for purposes of preservation of the human dignity and enable the offending human being realize the full potential of himself/herself as a human being.
(e)Adjudication of the rights are between the individual as the governed and the state as the governor and are not adjudicatable as between individuals under private law.
(f)As found by judges in the persuasive authority of Reyes v the Queen (supra) the call both at the international level as well as the Municipal level is for the courts to interpret the said bill of Rights broadly and liberally in order to give effect to the enforcement of the right with an interpretation which favours the enjoyment of that is alleged to have been breached or has been threatened to be breached.
(g)The interpretation should also bear in mind the need to observe respect and protect the dignity of the individual.
(h)There is no prescribed period of limitation inbuilt either under the defunct section 84(1) provisions or current article 23 of the 2010 Constitution as to when one loses the right to pursue infringement to a fundamental right.
(i)Even where no specific remedies were prescribed as being inbuilt in the defunct section 84(1) Provisions, the courts had jurisdiction to grant appropriate remedies known in law. Some of which have now been entrenched in article 23 with a rider that they are not exhaustive.”
[8] The applicants urged the Court to note that the respondent did not dispute the facts as outlined in the Supporting Affidavit, namely:
[a] that the applicants have been rehabilitated.
[b] That the applicants’ death sentence has been commuted to life imprisonment with an indefinite term,
[c] That the court of appeal has determined that life sentence should not be for an indefinite period.
[9] In response to the proposition that the court is functus officio , the applicants argued that all they seek is the conversion of the life sentence they are serving to a determinate term of imprisonment. They relied on the case of Damiano v Republic [2025] KEHC 650 (KLR) where it was held that:
“12. Therefore, the death sentence originally meted out on the Applicant was subsequently commuted to life imprisonment pursuant to the presidential decree. He indicated that this happened in 2016. This was through the presidential pardon by the power of mercy committee. In my view, it is only the commuted sentence that is amenable for revision. It is however not merit based as merit has already been dealt with. The narrow window for the applicant was given by the Court of Appeal and various cases by this court.
13.The sentence the applicant is serving is a life sentence. This has not been dealt with by the courts handling the matter. The Court of Appeal has dealt with the life sentence in multifaceted way, the bottom line being that it is unconstitutional for not being a determinate sentence. In Evans Nyamari Ayako v Republic Kisumu CACRA No. 22 of 2018 (Okwengu, Omondi & J. Ngugi, JJA)(unreported) translated life imprisonment to 30 years.
16.It is therefore not the sentence that is reviewed as urged by the Respondent but translation to a determinate period. The guilt, mitigation, and any errors on procedure are not within the domain of the matters to be determined. It is thus the position as set out in binding precedent that the court is bound to translate life sentence to a determinate sentence. In other words, it is not the inherent merit of the sentence application but the sentence qua sentence. The Court of Appeal, did not however, give any guidance on the parameters to use. The court will therefore use its sentencing guidelines and also give a determinate sentence whose term shall run as per Section 333 (2) of the Criminal Procedure Code from date of arrest.”
[10] On the basis of the foregoing, the applicants submitted that the Court has only been invited to determine the term equated to life imprisonment as the applicants are not challenging the death penalty as meted but the commuted sentence of life imprisonment. They relied on Muriuki v Republic [2025] KEHC 62 (KLR) where the court held that:
“11.The court will thus not be in a position to address breaches of Article 50(2)(q) of the Constitution for doing so will breach the principle of res Judicata. However, the death sentence originally meted out on the Applicant was commuted to life imprisonment pursuant to the presidential decree. Though he indicated that this happened in 2009, it cannot be possible since the offence was committed in 2011. This has to be a subsequent date. The last available and proclamation was a presidential pardon through the power of mercy committee. The sentence is not being reviewed for legality as this court has no jurisdiction to do so given that the High Court had already pronounced itself on this aspect. However, on 21/7/2023, the President commuted the sentence of all capital offenders as at 21.11. 2022. Vide Vol. CXXV—No. 168 of 21st July, 2023. The gazette notice read as follows: - Commutation of Death Sentence IT IS notified for general information of the public that in exercise of the powers conferred by Article 133 of the Constitution of Kenya and section 23 (1) of the Power of Mercy Act, 2011, the President and Commander-in-Chief of the Defence Forces of the Republic of Kenya, upon the recommendation of the Advisory Committee on the Power of Mercy, commuted the death sentence imposed on every capital offender as at the 21st November, 2022, to a life sentence.Dated the 19th July, 2023. J. B. N. Muturi,Attorney -General and Chairperson, Power of Mercy Advisory Committee.
12.Effectively the Applicant’s sentence became a life sentence. This is a matter the court can take judicial notice of. There is no doubt that the death sentence meted out was deserving as confirmed by this court. It is therefore in respect of the life sentence that the court can pronounce itself. It is only the commuted sentence that is amenable for revision. It is however not merit based as merit has already been dealt with. It is a narrow window the Applicant was given by the Court of Appeal and various cases by this court.
13.The sentence the applicant is serving is a life sentence. This has not been dealt with by the courts handling the matter. The matter herein is thus not res judicata when dealing with equating a life sentence, which was well deserved.”
[11] Lastly, the applicants submitted that in the Judiciary sentencing guidelines, certain factors have been set out for consideration when determining appropriate sentence, such as the antecedents of the offender. They urged the Court to take into consideration that they were first time offenders; and that they have been in prison for over 11 years having been sentenced while at a young age. In their view, the period served is a sufficient punishment. Accordingly, they prayed that their application be allowed and orders granted as sought in their Notice of Motion dated 21 st June 2024.
[12] On behalf of the respondent, submissions were filed herein by learned counsel dated 23 rd April 2025. The respondent raised a single point for the Court’s consideration, namely, that the decision of Evans Nyamari Ayako v Republic relied on by the applicants, was overturned and set aside by the Supreme Court in Republic v Ayako [2025] KESC 20 (KLR). Accordingly, the respondent submitted that the Court is bound by the recently set precedent on the question of constitutionality of the life sentence. On that account, the respondent prayed for the dismissal of the application for lack of merit.
[13] I have given due consideration to the Notice of Motion dated 21 st June 2024, its Supporting Affidavit and the written submissions filed in respect thereof. The factual basis of the application is not in dispute. The parties are in agreement that the applicants were charged and tried before the Court in this matter for the offence of murder. They were found guilty thereof and sentenced to death on 19 th July 2016. It is also common ground that, being aggrieved by their conviction and sentence, the applicants filed Criminal Appeal No. 120 of 2016 before the Court of Appeal at Kisumu. That appeal was likewise heard and determined on 23 rd September 2022. The Court of appeal upheld both the conviction and sentence passed by the trial court. At paragraphs 23, 24 and 25 of the judgment of the Court of Appeal, it stated thus:
“[23] In the end, we find no reason to interfere with the trial court’s finding on conviction. We think and hold it to be on firm and safe ground.
[24] As to the death sentence imposed, we take the view that it is deserved. There was a land dispute between the family of the deceased and that of the appellants, a dispute which was the subject of ongoing court cases. A civilized society must frown upon litigants settling civil disputes by violence and murder.
[25] Accordingly, the appeal is dismissed on both conviction and sentence.”
[14] After the dismissal of their appeal by the Court of Appeal, the applicants had their sentence of death commuted to life imprisonment. They pointed out that they do not seek a merit review of their sentence and to this end they relied on Damiano v Republic (supra) and Muriuki v Republic (supra). Their prayer was for the life sentence which they are currently serving to be converted to a determinate term of imprisonment for 30 years. They hinged their entire case on the case of Evans Nyamari Ayako v Republic (supra), in which the Court of Appeal held that:
“ This qualitative survey of how different jurisdictions have treated life imprisonment in the recent past provides objective indicia of the emerging consensus that life imprisonment is seen as being antithetical to the constitutional value of human dignity and as being inhuman and degrading because of its indefiniteness and the definitional impossibility that the inmate would ever be released. This emerging consensus of the civilized world community, while not controlling our outcome, provides respected and significant confirmation for our own conclusion that life imprisonment is cruel and degrading treatment owing to its indefiniteness. On our part, considering this comparative jurisprudence and the prevailing socio-economic conditions in Kenya, we come to the considered conclusion that life imprisonment in Kenya does not mean the natural life of the convict. Instead, we now hold, life imprisonment translates to thirty years’ imprisonment.
[15] Therefore, the single issue arising for determination in the instant application is whether the Court has jurisdiction to convert the applicant’s life sentence to a determinate term of 30 years’ imprisonment.
[16] As was pointed out by counsel for the respondent, the decision of the Court of Appeal in Evans Nyamari Ayako v Republic was appealed to the Supreme Court and the Supreme Court overturned the decision Republic v Ayako (supra). The Supreme Court held:
46.In Muruatetu I , faced with a similar question of ascribing a term sentence to life imprisonment, this court considered article 51 of the Constitution which provides for the rights of detained persons. Sub article 3 thereof specifically tasks Parliament with enacting legislation for the humane treatment of detainees, persons in remand and convicts. We, therefore, held that while life imprisonment ought not necessarily mean a prisoner’s natural life, it is for the Legislature to prescribe what constitutes life imprisonment and the parameters applicable, if at all. In that connection, we did, as the Supreme Court, recommend that the Attorney General and Parliament ought to commence an enquiry on this issue, and develop legislation on what constitutes a life sentence. Despite making this recommendation on December 14, 2017, and making an order that the Judgment be placed before the Speakers of the National Assembly and the Senate to, among other things, set the parameters of what constitutes life imprisonment, we note this recommendation has not been given consideration by the two offices of Parliament.
47.In view of the foregoing, we find that the Court of Appeal ought not to have proceeded to set a term sentence of thirty (30) years as a substitution for life imprisonment, as the effect would be to create a provision with the force of law while no such jurisdiction is granted to it. The term of thirty years was arrived at arbitrarily without involvement of Parliament and the people. In consequence, we find that the Court of Appeal ventured outside its mandate and powers.
[17] Similarly, in Republic v Manyeso (Petition E013 of 2024) [2025] KESC 16 (KLR) (11 April 2025) (Judgment) and the Supreme Court reiterated its position that:
64. … 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)
[18] The Supreme Court having pronounced itself on the matter, this Court has no jurisdiction to rule otherwise on account of the doctrine of stare decisis. In Republic v Ayako (supra) the Supreme Court restated that:
[49] 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 ).
[19] In the result, I find no merit in the Notice of Motion dated 21 st June 2024. The same is hereby dismissed.
DATED, SIGNED AND DELIVERED VIRTUALLY THIS 6 TH DAY OF AUGUST 2026
[a] That there be an order directed to the officer in charge of Kisumu Maximum Prison (Kodiaga) to issue documents to the applicants commuting their death sentence to life imprisonment .
[b] That the applicants’ indefinite life sentence be converted to a definite time in prison of not more than 30 years.
[c] That costs be provided for.
[2] The application was premised on the grounds that the applicants were sentenced to death by the High Court sometimes in the year 2016, which sentence was upheld by the Court of Appeal. They further averred that, through presidential pardon, their sentence was commuted to life imprisonment but that they cannot be released without a court order. They contended that the Court of Appeal has defined life sentence to mean 30 years’ imprisonment and therefore it is in the interest of justice that the orders sought be granted. They added that, unless their prayers are granted they are likely to be detained indefinitely, thereby violating their right to liberty.
[3] They relied on their Supporting Affidavit sworn by Samuel Onyango Aroko, the 1 st applicant, in which they reiterated the grounds aforestated. They also deposed that, while in prison, they have been able to acquire skills to enable them live as useful members of the society should they be released upon serving a definite prison term.
[4] The application was opposed by the respondent; to which end the respondent filed Grounds of Opposition dated 3 rd March 2025 contending that:
[a] Being dissatisfied with the decision of Court, the applicants filed an appeal at the Court of Appeal against their conviction and sentence, namely, Criminal Appeal 120 of 2016; which appeal was dismissed.
[b] Court has since been rendered functus officio .
[c] The applicants have raised a pertinent issue touching on the violation of their constitutional rights, which can be addressed through a Constitutional petition.
[d] The applicants’ Notice of Motion dated 2lst June 2024 lacks merit, is an abuse of the court process and ought to be dismissed.
[5] The application was canvassed by way of written submissions. Accordingly, the applicants relied on their written submissions dated 27 th March 2025. They reiterated the factual basis of their application and relied on the decision of the Court of Appeal in Evans Nyamari Ayako Versus Republic, Criminal Appeal No. 22 of 2018 (Kisumu) rendered in December 2023 in which life imprisonment was determined to equate to 30 years as opposed to the natural lifespan of an offender. They submitted that they have served over 10 years in prison and have, in the process reformed. The applicants produced various certificates as well as a letter from the prison indicating that they have reformed and should be allowed back to the society.
[6] The applicants further submitted that the Court has jurisdiction under Article 165 of the Constitution to grant the prayers sought. They also relied on Jona & 87 others v Kenya Prison Service & 2 others [2021] KEHC 457 (KLR) to underscore their submission that the Court has jurisdiction to grant the prayers sought notwithstanding that they have exhausted their right of appeal. In that matter the court held as follows:
“44.What then is the position where as a result of the failure to apply the said provisions, a person has exhausted his appellate options? In my view, unless the sentence was substituted by the appellate court, the same position applies. Where the appellate court considered the appeal and disallowed the same without interfering with the sentence, it is clear that the decision on sentencing remains that of the trial court and if that sentence was imposed in contravention of the provisions of section 333(2) of the Criminal Procedure Code, nothing bars this court in the exercise of its constitutional mandate pursuant to article 165 of the Constitution from redressing the situation. Accordingly, notwithstanding a dismissal of an appeal, a person sentenced in disregard of section 333(2) aforesaid is not thereby disentitled from invoking this court’s supervisory jurisdiction to consider whether or not the sentence imposed was lawful. While it may be argued that in so doing this court would be interfering with the decision of the appellate court which in effect affirmed the decision of the trial court, in my respectful view that would not be the position where an appeal is simply dismissed without the sentence being reviewed. Even if the same was reviewed, the jurisprudence in this country holds to the contrary.
[7] The applicants also placed reliance on Protus Buliba Shikuku v Attorney General [2012] eKLR where the High Court while addressing the question of jurisdiction to hear a matter which the Court of Appeal had determined on the merits held:-
“(9)In a unique way the superior court is being asked to interfere with a decision of the court of appeal. We are in agreement that article 23 of the current 2010 Constitution as read with article 165(1)(3)(a)(b)(d)(i)(ii) have donated the same mandate without exception to this superior court and for this reason of donation of jurisdiction without exception we feel confident that we are properly seized of the petitioner's complaints which arise from an alleged act of omission or commission by the courts of this jurisdiction as laid out in the petition.
(10)That the petitioner’s complaints in the petition having been anchored on an alleged breach of a fundamental right, the legal prescriptions assessed under the article 2(5) of the 2010 Constitution as emanating from International Law Best Practices are in agreement with the current Municipal prescriptions as assessed that there are key principles which should be taken into consideration when dealing with complaints such as those laid by the petitioner namely:-
(a)Equality before the law courts, tribunals and equal protection of the law is a fundamental right.
(b)A right to have one’s cause heard irrespective of its ultimate success is of paramount importance.
(c)There is entitlement to a right to an effective remedy meaning one which is capable of enforcement with a leaning towards conferring of a right.
(d)The sole purpose of enforcement of human rights is for purposes of preservation of the human dignity and enable the offending human being realize the full potential of himself/herself as a human being.
(e)Adjudication of the rights are between the individual as the governed and the state as the governor and are not adjudicatable as between individuals under private law.
(f)As found by judges in the persuasive authority of Reyes v the Queen (supra) the call both at the international level as well as the Municipal level is for the courts to interpret the said bill of Rights broadly and liberally in order to give effect to the enforcement of the right with an interpretation which favours the enjoyment of that is alleged to have been breached or has been threatened to be breached.
(g)The interpretation should also bear in mind the need to observe respect and protect the dignity of the individual.
(h)There is no prescribed period of limitation inbuilt either under the defunct section 84(1) provisions or current article 23 of the 2010 Constitution as to when one loses the right to pursue infringement to a fundamental right.
(i)Even where no specific remedies were prescribed as being inbuilt in the defunct section 84(1) Provisions, the courts had jurisdiction to grant appropriate remedies known in law. Some of which have now been entrenched in article 23 with a rider that they are not exhaustive.”
[8] The applicants urged the Court to note that the respondent did not dispute the facts as outlined in the Supporting Affidavit, namely:
[a] that the applicants have been rehabilitated.
[b] That the applicants’ death sentence has been commuted to life imprisonment with an indefinite term,
[c] That the court of appeal has determined that life sentence should not be for an indefinite period.
[9] In response to the proposition that the court is functus officio , the applicants argued that all they seek is the conversion of the life sentence they are serving to a determinate term of imprisonment. They relied on the case of Damiano v Republic [2025] KEHC 650 (KLR) where it was held that:
“12. Therefore, the death sentence originally meted out on the Applicant was subsequently commuted to life imprisonment pursuant to the presidential decree. He indicated that this happened in 2016. This was through the presidential pardon by the power of mercy committee. In my view, it is only the commuted sentence that is amenable for revision. It is however not merit based as merit has already been dealt with. The narrow window for the applicant was given by the Court of Appeal and various cases by this court.
13.The sentence the applicant is serving is a life sentence. This has not been dealt with by the courts handling the matter. The Court of Appeal has dealt with the life sentence in multifaceted way, the bottom line being that it is unconstitutional for not being a determinate sentence. In Evans Nyamari Ayako v Republic Kisumu CACRA No. 22 of 2018 (Okwengu, Omondi & J. Ngugi, JJA)(unreported) translated life imprisonment to 30 years.
16.It is therefore not the sentence that is reviewed as urged by the Respondent but translation to a determinate period. The guilt, mitigation, and any errors on procedure are not within the domain of the matters to be determined. It is thus the position as set out in binding precedent that the court is bound to translate life sentence to a determinate sentence. In other words, it is not the inherent merit of the sentence application but the sentence qua sentence. The Court of Appeal, did not however, give any guidance on the parameters to use. The court will therefore use its sentencing guidelines and also give a determinate sentence whose term shall run as per Section 333 (2) of the Criminal Procedure Code from date of arrest.”
[10] On the basis of the foregoing, the applicants submitted that the Court has only been invited to determine the term equated to life imprisonment as the applicants are not challenging the death penalty as meted but the commuted sentence of life imprisonment. They relied on Muriuki v Republic [2025] KEHC 62 (KLR) where the court held that:
“11.The court will thus not be in a position to address breaches of Article 50(2)(q) of the Constitution for doing so will breach the principle of res Judicata. However, the death sentence originally meted out on the Applicant was commuted to life imprisonment pursuant to the presidential decree. Though he indicated that this happened in 2009, it cannot be possible since the offence was committed in 2011. This has to be a subsequent date. The last available and proclamation was a presidential pardon through the power of mercy committee. The sentence is not being reviewed for legality as this court has no jurisdiction to do so given that the High Court had already pronounced itself on this aspect. However, on 21/7/2023, the President commuted the sentence of all capital offenders as at 21.11. 2022. Vide Vol. CXXV—No. 168 of 21st July, 2023. The gazette notice read as follows: - Commutation of Death Sentence IT IS notified for general information of the public that in exercise of the powers conferred by Article 133 of the Constitution of Kenya and section 23 (1) of the Power of Mercy Act, 2011, the President and Commander-in-Chief of the Defence Forces of the Republic of Kenya, upon the recommendation of the Advisory Committee on the Power of Mercy, commuted the death sentence imposed on every capital offender as at the 21st November, 2022, to a life sentence.Dated the 19th July, 2023. J. B. N. Muturi,Attorney -General and Chairperson, Power of Mercy Advisory Committee.
12.Effectively the Applicant’s sentence became a life sentence. This is a matter the court can take judicial notice of. There is no doubt that the death sentence meted out was deserving as confirmed by this court. It is therefore in respect of the life sentence that the court can pronounce itself. It is only the commuted sentence that is amenable for revision. It is however not merit based as merit has already been dealt with. It is a narrow window the Applicant was given by the Court of Appeal and various cases by this court.
13.The sentence the applicant is serving is a life sentence. This has not been dealt with by the courts handling the matter. The matter herein is thus not res judicata when dealing with equating a life sentence, which was well deserved.”
[11] Lastly, the applicants submitted that in the Judiciary sentencing guidelines, certain factors have been set out for consideration when determining appropriate sentence, such as the antecedents of the offender. They urged the Court to take into consideration that they were first time offenders; and that they have been in prison for over 11 years having been sentenced while at a young age. In their view, the period served is a sufficient punishment. Accordingly, they prayed that their application be allowed and orders granted as sought in their Notice of Motion dated 21 st June 2024.
[12] On behalf of the respondent, submissions were filed herein by learned counsel dated 23 rd April 2025. The respondent raised a single point for the Court’s consideration, namely, that the decision of Evans Nyamari Ayako v Republic relied on by the applicants, was overturned and set aside by the Supreme Court in Republic v Ayako [2025] KESC 20 (KLR). Accordingly, the respondent submitted that the Court is bound by the recently set precedent on the question of constitutionality of the life sentence. On that account, the respondent prayed for the dismissal of the application for lack of merit.
[13] I have given due consideration to the Notice of Motion dated 21 st June 2024, its Supporting Affidavit and the written submissions filed in respect thereof. The factual basis of the application is not in dispute. The parties are in agreement that the applicants were charged and tried before the Court in this matter for the offence of murder. They were found guilty thereof and sentenced to death on 19 th July 2016. It is also common ground that, being aggrieved by their conviction and sentence, the applicants filed Criminal Appeal No. 120 of 2016 before the Court of Appeal at Kisumu. That appeal was likewise heard and determined on 23 rd September 2022. The Court of appeal upheld both the conviction and sentence passed by the trial court. At paragraphs 23, 24 and 25 of the judgment of the Court of Appeal, it stated thus:
“[23] In the end, we find no reason to interfere with the trial court’s finding on conviction. We think and hold it to be on firm and safe ground.
[24] As to the death sentence imposed, we take the view that it is deserved. There was a land dispute between the family of the deceased and that of the appellants, a dispute which was the subject of ongoing court cases. A civilized society must frown upon litigants settling civil disputes by violence and murder.
[25] Accordingly, the appeal is dismissed on both conviction and sentence.”
[14] After the dismissal of their appeal by the Court of Appeal, the applicants had their sentence of death commuted to life imprisonment. They pointed out that they do not seek a merit review of their sentence and to this end they relied on Damiano v Republic (supra) and Muriuki v Republic (supra). Their prayer was for the life sentence which they are currently serving to be converted to a determinate term of imprisonment for 30 years. They hinged their entire case on the case of Evans Nyamari Ayako v Republic (supra), in which the Court of Appeal held that:
“ This qualitative survey of how different jurisdictions have treated life imprisonment in the recent past provides objective indicia of the emerging consensus that life imprisonment is seen as being antithetical to the constitutional value of human dignity and as being inhuman and degrading because of its indefiniteness and the definitional impossibility that the inmate would ever be released. This emerging consensus of the civilized world community, while not controlling our outcome, provides respected and significant confirmation for our own conclusion that life imprisonment is cruel and degrading treatment owing to its indefiniteness. On our part, considering this comparative jurisprudence and the prevailing socio-economic conditions in Kenya, we come to the considered conclusion that life imprisonment in Kenya does not mean the natural life of the convict. Instead, we now hold, life imprisonment translates to thirty years’ imprisonment.
[15] Therefore, the single issue arising for determination in the instant application is whether the Court has jurisdiction to convert the applicant’s life sentence to a determinate term of 30 years’ imprisonment.
[16] As was pointed out by counsel for the respondent, the decision of the Court of Appeal in Evans Nyamari Ayako v Republic was appealed to the Supreme Court and the Supreme Court overturned the decision Republic v Ayako (supra). The Supreme Court held:
46.In Muruatetu I , faced with a similar question of ascribing a term sentence to life imprisonment, this court considered article 51 of the Constitution which provides for the rights of detained persons. Sub article 3 thereof specifically tasks Parliament with enacting legislation for the humane treatment of detainees, persons in remand and convicts. We, therefore, held that while life imprisonment ought not necessarily mean a prisoner’s natural life, it is for the Legislature to prescribe what constitutes life imprisonment and the parameters applicable, if at all. In that connection, we did, as the Supreme Court, recommend that the Attorney General and Parliament ought to commence an enquiry on this issue, and develop legislation on what constitutes a life sentence. Despite making this recommendation on December 14, 2017, and making an order that the Judgment be placed before the Speakers of the National Assembly and the Senate to, among other things, set the parameters of what constitutes life imprisonment, we note this recommendation has not been given consideration by the two offices of Parliament.
47.In view of the foregoing, we find that the Court of Appeal ought not to have proceeded to set a term sentence of thirty (30) years as a substitution for life imprisonment, as the effect would be to create a provision with the force of law while no such jurisdiction is granted to it. The term of thirty years was arrived at arbitrarily without involvement of Parliament and the people. In consequence, we find that the Court of Appeal ventured outside its mandate and powers.
[17] Similarly, in Republic v Manyeso (Petition E013 of 2024) [2025] KESC 16 (KLR) (11 April 2025) (Judgment) and the Supreme Court reiterated its position that:
64. … 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)
[18] The Supreme Court having pronounced itself on the matter, this Court has no jurisdiction to rule otherwise on account of the doctrine of stare decisis. In Republic v Ayako (supra) the Supreme Court restated that:
[49] 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 ).
[19] In the result, I find no merit in the Notice of Motion dated 21 st June 2024. The same is hereby dismissed.
DATED, SIGNED AND DELIVERED VIRTUALLY THIS 6 TH DAY OF AUGUST 2026