Liomu v Republic (Criminal Appeal E061 of 2023) [2025] KEHC 18470 (KLR) (5 November 2025) (Judgment) Neutral citation: [2025] KEHC 18470 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT BUNGOMA CRIMINAL APPEAL E061 OF 2023 REA OUGO, J NOVEMBER 5, 2025 BETWEEN BONIFACE WATULO LIOMU ............................................................... APPELLANT AND REPUBLIC ............................................................................................ RESPONDENT (An appeal from the conviction and sentence in Webuye SPM Court Criminal Case No. E146/2022 by Hon. M. Munyekenye (SPM) delivered on the 7th September 2023) JUDGMENT 1. The appellant was charged and convicted of the offence of attempted murder contrary to section 220 (a) of the Penal Code and sentenced to serve life imprisonment. The appellant is dissatisfied with the finding of the subordinate court and has preferred an appeal before this court on the following grounds: 1. That the trial magistrate grossly erred in law and fact to convict the appellant on contradictory, inconsistent and uncorroborated evidence, which meant that the witness was not credible. 2. That the trial magistrate erred in law and fact in considering extraneous factors in decisionmaking. 3. That the appellant was denied his fundamental rights and freedoms enshrined in the Bill of Rights as per Article 50 (2) of the Constitution 2010. The court did not accord the appellant a fair hearing. 4. That the sentence of life imprisonment as meted out against the appellant was harsh and excessive. 5. That this honourable court should consider reducing the sentence imposed on humanitarian ground. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18470/eng@2025-11-05 1
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6. That the trial magistrate acted inhumanely by awarding a harsh and excessive sentence without considering the mitigating factors put forward for the court’s discretion. 2. The appellant, in his submissions supporting the appeal, abandoned the grounds against his conviction. He contends that an indeterminate life sentence constitutes inhumane treatment and violates the right to dignity under Article 28 of the Constitution. An indeterminate life sentence without any prospect of release or review is a degrading and inhuman punishment, and it is not recognised as a principle in international law. The court should have discretion to determine the appropriate sentence, considering the circumstances of the case (see Ogolla s/o Owuor v Republic (1954) WACVA 270). 3. The appellant seeks the court's leniency. He asserts that he is a first offender and expresses remorse for his offence. Determination 4. The only issue before the court is whether the court should interfere with the sentence meted out by the subordinate court. 5. The appellant has argued that an indeterminate life sentence is degrading and inhuman. The Court of Appeal in Manyeso v Republic [2023] KECA 827 (KLR) and Ayako v Republic [2023] KECA 1563 (KLR) held that an indefinite life sentence is discriminatory and instead interpreted life imprisonment as a fixed term of 40 years and 35 years, respectively. 6. However, the Supreme Court in Republic v Ayako [2025] KESC 20 (KLR) was of the view that courts are mandated to interpret, not revise, statutory sentences. It emphasised that altering penalty provisions is the exclusive function of the legislature and that existing statutory sentences must be applied as enacted. The Supreme Court in Republic v Ayako [2025] KESC 20 (KLR) stated: “ In Muruatetu I, faced with a similar question of ascribing a term sentence to life imprisonment… 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 ofices 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.” 7. The conclusion is that the appeal has no merit and is hereby dismissed. Right of appeal explained. DATED, SIGNED AND DELIVERED AT BUNGOMA THIS 5TH DAY OF NOVEMBER 2025. R.E. OUGO https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18470/eng@2025-11-05 2
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JUDGE In the presence of: Boniface Watulo Liomu /Appellant Miss Matere -For the Respondent Wilkister -C/A https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18470/eng@2025-11-05 3
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