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ELCAllowedCr. Misc. Appl. No. 17 of 2020· [2022] KEELC 1449 (KLR)

JMR v Republic [2022] KEELC 1449 (KLR)

High Court of Kenya
17 February 2022
2,915 words in judgment
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The bottom line

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Kenya's High Court struck down detention 'during the President's pleasure' as unconstitutional and freed a man imprisoned for over 16 years since childhood.

What this practically means

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Executive summary

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The applicant, JMR, petitioned the High Court at Garissa under Articles 22, 23, 25, 50(6)(a), 165, 258 and 259 of the Constitution, challenging the constitutionality of his sentence. Convicted of robbery with violence under Section 296(2) of the Penal Code in Garissa Chief Magistrate Criminal Case No. 680 of 2004, and being 17 years old at the time, he was on 4 May 2005 sentenced to be detained during the President's pleasure; his appeal (High Criminal Appeal No. 84 of 2006) was dismissed. He argued that the indeterminate sentence ceded judicial sentencing power to the executive, violating separation of powers and Articles 53(1) and (2) on children's rights. The State initially conceded but later filed a preliminary objection relying on the Supreme Court's Muruatetu directive of 6 July 2021. The court distinguished resentencing cases, holding that a challenge to the constitutional validity of the mandatory detention-during-the-President's-pleasure sentence is properly entertained by the High Court, and dismissed the objection. Finding that Section 25(2) and (3) of the Penal Code is indeterminate, dependent on presidential prerogative, and unconstitutionally transfers judicial power to the executive, and that it contravenes Articles 53(1) and (2), the Children's Act, the UN Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the Child, the court declared the section inconsistent with the Constitution, held the applicant's punishment extremely severe, set it aside, and ordered the applicant set free forthwith unless otherwise lawfully held.

Key legal issues

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01

Whether the court could entertain the petition notwithstanding the dismissed appeal, in light of the Muruatetu directive

Holding

The preliminary objection failed because the petition was a constitutional challenge to the validity of the mandatory detention-during-the-President's-pleasure sentence, not a mere resentencing application, and such challenges are properly filed before the High Court.

Reasoning

The State objected based on the Supreme Court's Muruatetu directive of 6 July 2021. The court distinguished this case from resentencing applications and held it squarely fits paragraph 15 of the directive, which permits a challenge to the constitutional validity of mandatory sentences in offences other than murder, such as robbery with violence under section 296(2), to be fully argued before the High Court.

p. 2
02

Whether Section 25(2) & (3) of the Penal Code violates the Constitution

Holding

Yes - it violates the separation of powers, the independence of the judiciary, and the rights of the child in conflict with the law, and is contrary to regional and international instruments.

Reasoning

The provision makes detention indeterminate, dependent on the President's prerogative, and requires the judiciary to cede its sentencing power to the executive. It also contravenes Articles 53(1) and (2) of the Constitution, the Children's Act, the UN Convention on the Rights of the Child (Article 37) and the African Charter on the Rights and Welfare of the Child, which require detention of children only as a last resort and for the shortest appropriate period.

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Whether the sentence imposed on the applicant should be reconsidered

Holding

The punishment was set aside and the applicant ordered set free, as the sentence was extremely severe for a person who was a child at the time of the offence and sentencing.

Reasoning

The applicant, a child of 17 at sentencing, was detained at the President's pleasure for over 16 years, subjected to severe and degrading punishment and kept in a maximum prison, contrary to the Children's Act which was in force and provides lesser punishments and methods of dealing with children in conflict with the law.

p. 4

Legal principles established

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  • Section 25(2) & (3) of the Penal Code, which requires detention during the President's pleasure, is unconstitutional as it cedes judicial sentencing power to the executive and imposes an indeterminate, oppressive sentence contrary to the Constitution and children's rights instruments.
  • The High Court retains jurisdiction to redress violations of fundamental rights arising from the operation of law even where the case has gone through the appellate level.
  • Sentencing is an exclusively judicial function that cannot constitutionally be ceded to the executive.

Court orders

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  1. 1.A declaration that Section 25(2) & (3) of the Penal Code is inconsistent with the Constitution and in applying the same the applicant's rights under the Constitution were violated
  2. 2.A declaration that the punishment meted out to the applicant was extremely severe considering his age at the time of the commission of the offence and sentencing, and inconsistent with Article 53(1) & (2) of the Constitution
  3. 3.The punishment meted out to the applicant be and is hereby set aside
  4. 4.The applicant be and is hereby set free forthwith unless he is otherwise lawfully held

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 2(5), 20, 22(1), 23, 25(a)(b)(c)(d), 50(2)(p), 50(6)(a), 53(1) & (2), 165(3)(b) & (d)(i)(ii), 258, 259
  • Penal CodeSections 25(2) & (3), 296(2), 297(2), 35(1), 40(3)
  • Children's ActSections 190, 191
  • Probation of Offenders ActCap. 64
  • United Nations Convention on the Rights of the ChildArticles 37(a) and 37(b)
  • African Charter on the Rights and Welfare of the ChildArticles 4 and 17

Cases cited (7)

  • A.O.O & 6 Others vs A.G. & Another
    [2017] eKLR
  • K.K.D. vs Republic
    [2018] eKLR
  • Republic vs Ibrahim Kamau Iringo
    [2019] eKLR
  • Francis Karioko Muruatetu & Another vs Republic
    [2017] eKLR
  • Republic vs S.O.M.
    Kisumu High Court Criminal Case No. 6 of 2011
  • Jasbir Singh Rai & 3 Others vs Tarlochan Singh Rai Estate & Others
    [2013]
  • Protus vs Republic Constitutional Reference No. 11 of 2011
    [2012] eKLR
Jurisdiction invoked
Articles 22(1), 23(1), 25, 50(6)(a), 165(3)(b) & (d), 258 and 259 of the Constitution of Kenya, 2010

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "JMR v Republic [2022] KEELC 1449 (KLR)", Case Analysis (2022). Cr. Misc. Appl. No. 17 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1449/eng@2022-02-17

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.