Kijana v Republic (Criminal Appeal E275 of 2019) [2024] KECA 404 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that mandatory life sentences for defilement are unconstitutional and resentenced a convict to 30 years with credit for time already served.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the appeal on sentence is barred by section 361(1)(a) of the Criminal Procedure Code, or whether the issues raised are matters of law
- 2.Whether the mandatory sentence under section 8(1) and (2) of the Sexual Offences Act, which deprived the trial court of sentencing discretion and prevented consideration of mitigation, is constitutionally valid
- 3.What sentence, if any, should be substituted for the mandatory life sentence
Key legal issues
#Jurisdiction to entertain a second appeal on sentence
Although section 361(1)(a) bars second appeals on severity of sentence (a matter of fact), the complaint here is that the mandatory nature of the penalty removed judicial discretion and denied mitigation, which are matters of law within the Court's jurisdiction.
The Court distinguished matters of fact (severity) from matters of law. The mandatory penalty left the trial magistrate no room to exercise discretion, and the appellant could not have his mitigation considered regardless of how compelling it was. Exercise of judicial discretion and the right to be heard in mitigation are matters of law, and the fair trial guarantee under Article 50 does not end upon conviction.
Constitutionality of the mandatory life sentence for defilement
The mandatory life sentence under section 8(1) and (2) of the Sexual Offences Act is no longer tenable, following Julius Kitsao Manyeso v Republic and Frank Turo v Republic, which applied Muruatetu reasoning to mandatory indeterminate life sentences.
Relying on this Court's decision in Julius Kitsao Manyeso, the Court endorsed the reasoning that a mandatory indeterminate life sentence denies convicts the opportunity to be heard in mitigation, constitutes unjustifiable discrimination contrary to Article 27, and violates the right to dignity under Article 28, informed by Vinter v The United Kingdom. The respondent conceded the unconstitutionality.
Appropriate substituted sentence
The Court resentenced the appellant to 30 years' imprisonment, balancing his mitigation (first offender, aged 20 at arrest, now reformed per a prison recommendation letter) against the aggravating circumstance that the victim was only 6 years old, running from the date of first arraignment.
The Court considered the appellant's mitigation, including a letter of recommendation dated 16th August 2021 from the Officer in Charge Kibos Maximum Security Prison evidencing remorse and reform, but weighed the aggravating circumstances, particularly the young age of the victim. Adopting the approach in Frank Turo equating life imprisonment with thirty years, it substituted 30 years from first arraignment on 9th September 2013.
Legal principles established
#- Mandatory sentences that deprive a court of discretion and prevent consideration of mitigation violate the fair trial guarantee; sentencing is part of the fair trial process and a convict has a right to be heard in mitigation
- The bar in section 361(1)(a) of the Criminal Procedure Code does not prevent a second appeal where the challenge to sentence raises matters of law, such as the denial of judicial discretion and the right to mitigation
- A mandatory indeterminate life sentence is unconstitutional as unjustifiable discrimination and inhumane treatment, following Julius Kitsao Manyeso v Republic
- Where there is sufficient address on mitigation on record, the Court of Appeal will itself resentence rather than remit to the High Court
Court orders
#- 1.The life imprisonment sentence imposed on the appellant is set aside
- 2.Substitution of a sentence of 30 years' imprisonment to run from 9th September 2013, the date of the appellant's first arraignment in court
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Kakamega
- Criminal Appeal no 167 of 2014
- Jurisdiction invoked
- Section 361 of the Criminal Procedure Code (second appeal on matters of law only); appellate jurisdiction over sentence where the trial court had no discretion due to the mandatory nature of the penalty
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The truth is sentencing is part of the fair trial process and, therefore, it is as a matter of right for a convict to be heard in mitigation.
We have said enough to afirm that before us are matters of law and therefore the bar erected by section 361 (1) (a) of the Criminal Procedure Code cannot stop us from considering the appeal on sentence before us.
an indeterminate life sentence is in our view also inhumane treatment and violates the right to dignity under article 28
In cases where there is suficient address on mitigation on record, this Court avoids needlessly congesting the High Court by remitting such cases for resentencing.
Accordingly, we hereby set aside the life imprisonment sentence and substitute it with a period of 30 years’ imprisonment to run from 9th September 2013, the date of the appellant’s first arraignment in court.
Issues in the judgment
#The judgment reproduces a quotation from Julius Kitsao Manyeso that mixes quoted material with the Court's own commentary in the same block quote ('See also in Kisumu Criminal Appeal no 157 of 2017... note that the appellant was a first ofiender.'), blurring the boundary between quotation and commentary.
The judgment does not state the appeal number of this second appeal, referring only to the memorandum of appeal; the case number field must be drawn from the antecedent appeals.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kijana v Republic (Criminal Appeal E275 of 2019) [2024] KECA 404 (KLR)", Case Analysis (2024). Criminal Appeal (not separately numbered in judgment; second appeal from Kakamega High Court Criminal Appeal no 167 of 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/404/eng@2024-04-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.