Mbori v Republic

give regard to not only his dignity as a human being but also subjects him to inhuman and degrading treatment. b. This Honourable Court be pleased to issue a declaration that the Petitioner’s right is threatened so far as serving the sentence for the rest of his life in prison without consideration of rehabilitation is disproportionate. c. This Honourable Court orders that the Petitioner is fit to serve a term of years considering his mitigation as provided under Section 216 and 329 of the Criminal Procedure Code. d. An order, in the alternative, for revision of the Petitioner’s case in the interest of justice. e. The Court be pleased to make further such other order(s) as it shall deem just. 2. The Petitioner avers that he was charged with the offence of murder contrary to Section 203 read with Section 204 of the Penal Code in Criminal Case No. 17 of 1991 at Nairobi. Following his conviction and sentence to suffer death, he preferred an appeal under Criminal Appeal No. 6 of 1992, which was dismissed on 22nd May 1998. 3. Having exhausted his appellate rights, the Petitioner now approaches this Court by way of a constitutional petition, challenging the commuted life sentence imposed upon him. He contends that the sentence is harsh, inhuman, and degrading, thereby violating his rights to dignity and to freedom from inhumane and degrading treatment. 4. The Petitioner further avers that the imposition of an indeterminate life sentence, devoid of judicial input, constitutes a violation of his rights under Article 25 of the Constitution. 5. In response, the Respondent filed a replying affidavit sworn by Njoki Kihara, Principal Prosecution Counsel at the Office of the Director of Public Prosecutions. It is averred that, pursuant to Article 165(6) of the Constitution, this Court lacks jurisdiction to entertain the Petition, as the Petitioner had already litigated the matter to the Court of Appeal, which dismissed his appeal, rendering this Court functus officio. 6. The Respondent further asserts that, under Sections 24 and 25 of the Penal Code, the death sentence is lawful. 7. The Respondent contends that the Petition fails to meet the threshold established in Anarita Karimi v Republic (No.1) (1979) 1 KLR 154 and reaffirmed in Mumo Matemu v Trusted Society of Human Rights Alliance [2014] eKLR, in that it is misconceived, bad in law, and incompetent. According to them, the Petition fails to set out with reasonable particularity the specific provisions claimed to have been infringed and the manner in which such violations are alleged to have occurred. 8. The Respondent also asserts that the Petitioner has not demonstrated how his constitutional rights were infringed, given that he was duly charged, tried, and convicted of murder, and urges this Court to dismiss the Petition for lack of jurisdiction and as an abuse of court process. 9. The petition was canvassed by way of written submissions which were duly filed by both parties. Petitioner’s Submissions 10. In his written submissions dated 18th July 2025, the Petitioner formulated four principal issues for determination. On the first issue concerning jurisdiction, the Petitioner submitted that jurisdiction constitutes the foundation of judicial authority, and absent it, a Court is precluded from taking any further step. In support, reliance was placed on Owners of Motor Vessel “Lillian S” v Caltex Oil Kenya Ltd [1989] KLR and Uganda v Kassiano Wadri & 31 Others, Criminal Revision No. 0002 of 2018. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18254/eng@2025-11-27 2

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The Petitioner contended that Articles 165(3)(b) and 165(3)(d) vest this Court with authority to determine alleged violations of the Bill of Rights and to interpret constitutional questions. Further reliance was placed on Protus Buliba Shikuku v Attorney General, Reference No.3 of 2011 [2012] eKLR and AOO & 6 Others v Attorney General & Another [2017] eKLR to affirm the High Court’s mandate under Articles 23 and 165. The Petitioner also referred to the Supreme Court’s consolidated Petition Nos. 15 & 16 of 2015 and the directions in Muruatetu to clarify the limited reach of that decision, asserting that this Court retains jurisdiction to examine the matters raised. On this basis, the Petitioner maintained that this Court is properly seized of the Petition. 11. On the second issue regarding judicial discretion in imposing the death sentence under Section 203 read with Section 204 of the Penal Code and Articles 25(c) and 50(2)(p) of the Constitution, the Petitioner challenged the mandatory death penalty framework. Reference was made to Pravin Bowry’s critique in his article “What Penalty for Sex Offenders?”, highlighting the injustice inherent in mandatory minimum sentences that fetter judicial discretion. While acknowledging the Penal Code’s objectives of denunciation, just punishment, deterrence, and protection, the Petitioner argued that mandatory death sentences have not demonstrably curbed violent crime or recidivism. Comparative analysis was drawn from the United States of America, invoking Mathew C. Lamb’s article “A Return to Rehabilitation: Mandatory Minimum Sentencing in an Era of Mass Incarceration”, illustrating that rigid mandatory sentences contribute to mass incarceration without measurable deterrent effect. Domestically, reliance was placed on the 2018 Criminal Procedure Bench Book and its principles of proportionality, parity, and human rights, advocating for codification akin to the United Kingdom’s Criminal Justice Act 2003. The Petitioner’s thrust was that sentencing should be individualized and that inflexible mandatory penalties undermine constitutional protections. 12. On the third issue regarding compliance of life imprisonment with Articles 25(c) and 50(2)(p) of the Constitution, the Petitioner invoked the 2016 Sentencing Policy Guidelines, emphasizing restorative justice, rehabilitation, and assessment of societal and familial impact. Drawing guidance from Thokozile Matilda Masipa J in the Oscar Pistorius case, the Petitioner submitted that proportionality necessitates balancing retribution, prevention, reformation, and deterrence, and that excessively prolonged sentences may defeat rehabilitative objectives. Reliance was placed on S v Malgas 2001 (2) SA 1222 SCA 1235, Mithu v State of Punjab [1983] 2 SCR 690 (MITHU), and Fatuma Hassan Salo v Republic [2006] to demonstrate that judicial discretion must account for the circumstances of the offence and the offender. The Petitioner contended that indeterminate life imprisonment, applied inflexibly, violates the principles of equality, dignity, and fair trial, and is accordingly harsh, arbitrary, and constitutionally infirm. 13. On the fourth issue regarding the exercise of discretion by the trial court and the appropriate way forward, the Petitioner submitted that the trial court’s imposition of life imprisonment as “natural life” was ambiguous, denied parity with Muruatetu’s guidance on resentencing, and was therefore unjust. Reference was made to Article 15 of the UN recommendations questioning prolonged and life sentences as incompatible with human dignity and restorative justice. On this basis, the Petitioner urged reconsideration of the sentence and called for broader reforms to anchor judicial discretion in constitutional principle. 14. Accordingly, the Petitioner prayed that this Honourable Court grant the reliefs sought and revise the sentence imposed. Respondent’s Submissions 15. The Respondent, in its written submissions dated 4th July 2025, argued that this Court lacks jurisdiction to entertain the present petition on the basis that the matter had been fully litigated up https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18254/eng@2025-11-27 3

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to the Court of Appeal. It was submitted that upon dismissal of the Petitioner’s appeal, this Court became functus officio and is therefore precluded from revisiting the sentence. 16. The Respondent further submitted that the Petitioner has not demonstrated any violation of his constitutional rights, noting that he was lawfully charged, tried, convicted, and sentenced for the offence of murder. Counsel emphasized that pursuant to Sections 24 and 25 of the Penal Code, the death sentence remains a lawful punishment, and the Petitioner has not identified any specific constitutional infraction arising after the conclusion of his appeal. It was therefore argued that the petition is legally unsustainable. 17. The Respondent additionally relied on recent jurisprudence from the Supreme Court, particularly Republic v Joshua Gichuki Mwangi (Petition No. E018 of 2023), wherein the Court reaffirmed that questions surrounding the constitutionality of life imprisonment or statutory minimum sentences must first be canvassed before the High Court through a properly instituted challenge, and thereafter progress through the appellate hierarchy. The Respondent submitted that the Petitioner’s case does not meet this procedural threshold. 18. Furthermore, it was contended that the Petition falls short of the constitutional pleading standard established in Anarita Karimi supra and reaffirmed in Mumo Matemu supra. The Respondent argued that the Petitioner has failed to specify with precision the particular constitutional provisions allegedly infringed or the manner of their violation. Counsel emphasized that the Petitioner’s rights are not absolute and must be balanced against public interest and the rights of others, and urged this Court to dismiss the Petition for want of jurisdiction and for being an abuse of court process. Analysis and Determination 19. I have carefully considered the Petition, the affidavits on record, and the respective submissions of the parties. The central issue for determination is whether the Petition is merited. 20. At the outset, it is noteworthy that the Petitioner did not disclose that he had previously filed a review application, being Miscellaneous Application No. 325 of 2019, which was heard and dismissed by A.M. Muteti, J. on 28th April 2025, the Court having upheld the sentence. This omission is material. 21. The Petitioner now approaches this Court seeking a declaration that the indeterminate nature of his life sentence is unconstitutional on grounds that it infringes his rights to dignity and to freedom from inhuman or degrading treatment. The first duty of this Court is, however, to satisfy itself that it has jurisdiction to entertain the matter. Jurisdiction is conferred only by the Constitution or statute. The Supreme Court in Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] eKLR pronounced itself in emphatic terms, stating: “ A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. We agree with counsel for the first and second respondents in his submission that the issue as to whether a Court of law has jurisdiction to entertain a matter before it, is not one of mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, the Court cannot entertain any proceedings.” 22. Under Article 165(3), this Court enjoys unlimited original jurisdiction in criminal and civil matters. Article 165(6) further grants supervisory jurisdiction over subordinate courts and bodies exercising judicial or quasi-judicial functions, but expressly excludes supervisory authority over superior courts. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18254/eng@2025-11-27 4

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Article 162(1) identifies the Supreme Court, the Court of Appeal, and the High Court under Article 162(2) as superior courts. 23. In the present case, the Petitioner was convicted and sentenced by the High Court. His appeal to the Court of Appeal was dismissed, thereby affirming the conviction and sentence. He subsequently filed a revision before this Court, which was also dismissed. He now invites this Court to declare his life sentence unconstitutional and to revisit the question of its legality. 24. Once the Court of Appeal pronounced itself, this Court became functus officio in respect of the conviction and sentence. Article 165(6) prohibits the High Court from exercising supervisory or revisional jurisdiction over superior courts. The Petitioner cannot circumvent this constitutional bar by re-packaging the same grievance as a constitutional petition. Litigation must come to a close, and the High Court cannot be transformed into a collateral avenue for rehearing matters already adjudicated by the Court of Appeal or those which the Petitioner has previously canvassed before this Court. 25. Although Article 22(1) grants every person the right to institute proceedings alleging violation of rights, the Petitioner has not demonstrated any violation, infringement, or threat to a right or fundamental freedom arising after the appellate and revisional processes were concluded. He has not shown how Articles 22, 23, 25, 27, 28, 29, or 50 have been violated by the Respondent. His grievance relates squarely to the lawfulness of his sentence, a matter already conclusively settled. 26. Turning to the substance of the Petitioner’s claim that life imprisonment is unconstitutional, I have considered his argument that the sentence violates Articles 25 and 50 of the Constitution on account of its indeterminate nature. 27. The Supreme Court in Francis Karioko Muruatetu & another v Republic [2017] eKLR addressed similar arguments regarding the constitutionality of indeterminate life sentences and declined to declare such sentences unconstitutional. The Court noted that the matter had not been sufficiently argued and emphasized that the definition, duration, and parameters of life imprisonment fall within the legislative domain. The court held as follows: “ a) Whether the indeterminate life sentence should be declared unconstitutional? (73) Counsel for the 1st Petitioner raised two issues with regard to the ‘indeterminate’ or ‘indefinite’ life sentence, as follows: whether the indeterminate nature of a life sentence is unconstitutional and whether this Court should fix a definite number of years of imprisonment, subject to remission rules, which will constitute life imprisonment. We will address the two questions separately. (74) The 1st petitioner submitted that the indeterminate life sentence is contrary to Articles 28 (right to dignity) and 29 (d) and (f) of the Constitution (protection from physical or psychological torture and protection from cruel, inhuman and degrading treatment or punishment) and it also does not provide the prisoner with an avenue for review of the sentence. The 2nd petitioner has argued that the indeterminate life sentence which is devoid of judicial input is contrary to Article 50 of the Constitution, which provides for the right to a fair trial. The respondent, the DPP, did not provide substantive submissions on this question. (75) On the other hand, counsel for the amici curiae urged the Court not to determine ‘the constitutionality of any aspect of life imprisonment’, as it has https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18254/eng@2025-11-27 5

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not as yet been canvassed in the High Court or the Court of Appeal. He also argued that because of the complexity of the issue, the Court should avoid prejudging any future challenge. In the event that the Court chose to determine this issue, he argued that a lack of provision in legislation for remission or parole for persons serving life imprisonment is contrary to amongst other sections, Article 27 of the Constitution (discrimination). (76) We have perused and analyzed the Petition and the written submissions and it is clear that the petitioners have not sufficiently argued and illustrated the particulars of why the indeterminate life sentence should be declared unconstitutional. Indeed, counsel for the 1st upon being asked by the Court to elaborate on this issue was not able to provide adequate submissions. A critical issue such as this, where legislation is to be examined is deserving of the reasoned and well-thought arguments of the petitioners, the Director of Public Prosecution and other interested parties or amicus curiae and input of the High Court and the Court of Appeal. This will allow this Court to benefit from the reasoning of these superior Courts and the parties will not be disadvantaged by this Court’s holding which will in effect make this Court a court of first and last instance. It is therefore our view that the submissions made did not canvass the issue to our satisfaction. Consequently, we will not make a determination on it… (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 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.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18254/eng@2025-11-27 6

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28. Further, the Supreme Court has since given further clarity. In Republic v Manyeso, Petition No. E013 of 2024 [2025] KESC 16 (KLR) it held: “ [64]. Paragraph 11 to 14 of the Muruatetu directions are very clear that the decision in the Muruatetu case did not invalidate mandatory sentences or minimum sentences in the Penal Code, Sexual Offences Act or any other statute. Further, that the Muruatetu case cannot be said to be the authority for stating that all provisions of the law prescribing minimum sentences are inconsistent with the Constitution. 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 https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18254/eng@2025-11-27 7

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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. [66] We therefore find that the Court of Appeal violated the principle of stare decisis by misapplying the decision in Muruatetu and in finding the life sentences of imprisonment to be unconstitutional.” The Supreme Court concluded that the Court of Appeal had erred in declaring life imprisonment unconstitutional and had misapplied the Muruatetu decision. 29. The Supreme Court reiterated this position in Republic v Ayako [2025] KESC 20 (KLR), holding that judicial imposition of term sentences as substitutes for life imprisonment without legislative sanction was ultra vires, as Article 94 vests Parliament with legislative authority to prescribe sentence parameters. The court pronounced itself as follows: “ Article 94 of the Constitution in particular vests Parliament with the power to make provisions with the force of law. It further provides that other persons or bodies may also do so only under legislative fiat or the Constitution, but this authority has to be express and specific as to the purpose, objectives, limits, nature and scope of the law to be made. In this way, the Constitution is comprehensive with the necessary safeguards that protect the people of Kenya. We would also add that, before a provision has the full effect of the law, it has to go through various stages of the legislative process, principal among them being public participation. The enactment of legislation without going through these necessary safeguards means that the resultant law would lack legitimacy and will be rendered unconstitutional. In the Republic v Mwangi Case, this Court held that, whilst sentencing is an exercise of judicial discretion, Parliament sets the parameters for sentencing for each crime in statute. We stated as follows: “ 66. We must also reaffirm that, although sentencing is an exercise of judicial discretion, it is Parliament and not the Judiciary that sets the parameters of sentencing for each crime in statute. As such, striking down a sentence provided for in Statute, must be based not only on evidence and sound legal principles but on an in-depth consideration of public interest and the principles of public law that informed the making of that specific law. A judicial decision of that nature cannot be based on private opinions, sentiments, sympathy or benevolence. It ought not to be arbitrary, whimsical or capricious. However, where a sentence is set in Statute, the Legislature has already determined the course, unless it is declared unconstitutional, based on sound principles and clear guidelines, upon which the Legislature should then act. Suffice to say, where Parliament enacts legislation, the Judicial arm should adjudicate disputes based on the provisions of the law. However, in the special https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18254/eng@2025-11-27 8

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circumstances of a declaration of unconstitutionality, the process is reversed”. 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 14th December 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. 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.” 30. It is therefore beyond peradventure that life imprisonment remains a lawful and constitutional sentence unless and until Parliament provides otherwise. This Court cannot depart from binding precedent of the Supreme Court nor arrogate to itself the legislative function of defining the duration or parameters of a life sentence. 31. In the present case, the Petitioner is serving a sentence lawfully imposed and affirmed by the Court of Appeal. He has not demonstrated violation of any constitutional right arising subsequent to that determination. The attempt to reopen the matter through a constitutional petition is impermissible. The Court of Appeal in Kenya Hotel Properties Limited v Attorney General & 5 others [2020] eKLR emphasized that decisions of superior courts are binding and cannot be revisited by the High Court under the guise of constitutional litigation. The court held: “ As we stated at the beginning of this judgment this appeal is disturbing. The multiplicity of endless proceedings around the same dispute does not bode well for the administration of justice...Its latest rising is the most baffling of all because the petition filed before the High Court sought strange prayers in that the Court there was being asked to annul, strike out, reverse or rescind a judgment of this Court, its elder sibling. In a system of law that is hierarchical in order, such as ours is, it seems to us that such a thing is quite plainly unheard of and for reasons far greater than sibling rivalry. the Constitution itself clearly delineates and demarcates what the High Court can and cannot do. One of things it cannot do by virtue of Article 165(6) is supervise superior courts. Moreover, under Article 164(3) of the Constitution, this Court has jurisdiction to hear and determine appeals from the High Court. Its decisions are binding on the High Court and all courts equal and inferior to it. It is therefore quite unthinkable that the High Court could make the orders the appellant sought as against a decision of this Court to quash or annul them, or that it could purport to direct this Court to re-open and re-hear a concluded appeal. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18254/eng@2025-11-27 9

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We consider this to be a matter of first principles so that the appellant’s submission that the issue pits supremacy of the courts against citizens’ enjoyment of fundamental rights is really misconceived because rights can only be adjudicated upon by properly authorized courts. Any declaration by a court that has no jurisdiction is itself a nullity and amounts to nothing. It matters not how strongly a court feels about a matter, or how impassioned it may feel or how motivated it may be to correct a perceived wrong; without jurisdiction it would be embarking on a hopeless adventure to nowhere.” 32. Accordingly, I am satisfied that the Petitioner is serving a lawful sentence of life imprisonment. This Court has no jurisdiction to substitute that sentence with a determinate term, nor to reopen matters conclusively adjudicated upon by the superior courts. The sentence of life imprisonment, as imposed and affirmed, remains lawful, valid, and constitutional. 33. In the result, the Petition is devoid of merit and is hereby dismissed in its entirety. There shall be no order as to costs Orders accordingly. File closed. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 27TH DAY OF NOVEMBER, 2025. BAHATI MWAMUYE MBS JUDGE In the presence of: Petitioner –Mr. Joseph Juma Mbori present at Kamiti Maximum Counsel for the Respondent – Mr. Achochi hb Ms. Ntabo Court Assistant – Ms. Lwambia https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18254/eng@2025-11-27 10

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