Stephen Majengo Akhonya v Republic
The bottom line
#Kenya's Court of Appeal confirmed mandatory life sentences for defilement are unconstitutional, replacing life imprisonment with a determinate 30-year term.
What this practically means
#Executive summary
#Key legal issues
#Constitutionality of the mandatory minimum sentence under section 8(2) of the Sexual Offences Act
The mandatory nature of the life imprisonment sentence imposed under section 8(2) is unconstitutional because it deprived the High Court of sentencing discretion in the individual circumstances of the case
The High Court had considered itself shackled by the mandatory minimum under section 8(2), disabling the judge from exercising discretion in imposing an appropriate sentence for the individual offender. This Court's emerging jurisprudence, in Joshua Gichuki Mwangi and Julius Kitsao Manyeso, has declared such statutory fettering of sentencing courts unconstitutional. The issue is one of law, properly within second appellate jurisdiction under section 361(a) of the Criminal Procedure Code, not merely a question of sentence severity.
Constitutionality of indeterminate life imprisonment and the appropriate substituted sentence
The indeterminate life sentence is unconstitutional; following Evans Nyamari Ayako, life imprisonment translates to a determinate term of thirty years, which the Court substituted in this case
The Court's most recent jurisprudence, in Frank Turo and Evans Nyamari Ayako, has declared life imprisonment unconstitutional due to its indeterminate nature. In Evans Nyamari Ayako, applying Articles 27 and 28 of the Constitution to sentencing, the Court declared life imprisonment to mean a determinate sentence of thirty years. Although the objective seriousness and aggravating circumstances here justified a stiff deterrent sentence, the Court adopted the thirty-year translation and backdated it under section 333(2) of the Criminal Procedure Code.
Legal principles established
#- The statutory fettering of sentencing courts with mandatory minimum sentences under the Sexual Offences Act is unconstitutional, as it disables sentencing courts from exercising discretion in the individual circumstances of the case
- Life imprisonment is unconstitutional due to its indeterminate nature; in applying Articles 27 and 28 of the Constitution to sentencing, life imprisonment means a determinate sentence of thirty (30) years imprisonment
- Challenges to mandatory sentences and indeterminate life sentences are matters of law, not mere questions of severity of sentence, and are therefore proper subjects of a second appeal under section 361(a) of the Criminal Procedure Code
Court orders
#- 1.Declaration that the mandatory nature of the sentence of life imprisonment imposed under section 8(2) of the Sexual Offences Act is unconstitutional
- 2.Declaration that the indeterminate term of life imprisonment actually imposed on the appellant is unconstitutional
- 3.Appeal allowed on sentence to the extent of substituting the sentence of life imprisonment with a term sentence of 30 years' imprisonment
- 4.Sentence of 30 years computed to begin on 17th July, 2008 in accordance with section 333(2) of the Criminal Procedure Code, the appellant having been in custody since that day
- On appeal from
- High Court of Kenya
- Jurisdiction invoked
- Section 361(a) of the Criminal Procedure Code (second appellate court jurisdiction on matters of law)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Stephen Majengo Akhonya v Republic", Case Analysis (2024). Criminal Appeal (not separately numbered in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/327/eng@2024-03-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.