JMR v Republic [2022] KEELC 1449 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the court could entertain the petition notwithstanding the dismissed appeal, in light of the Muruatetu directive
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.
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.
Whether Section 25(2) & (3) of the Penal Code violates the Constitution
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.
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.
Whether the sentence imposed on the applicant should be reconsidered
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.
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.
Legal principles established
#- 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
#- 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.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.The punishment meted out to the applicant be and is hereby set aside
- 4.The applicant be and is hereby set free forthwith unless he is otherwise lawfully held
- 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
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- JNG v Republic (Criminal Appeal 189 of 2017) [2025] KECA 1006 (KLR)[2025] KECA 1006 (KLR)2 May 2025
Cite this brief
#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.