Peter Kamau Nderitu v Republic

4. Following full trial, the Appellant was convicted on the 6/09/2017. The trial court noted that the Appellant was a first offender but expressed concern over the lack of remorse and the gravity of committing a sexual act against a defenceless child with a significant disability. Under the prevailing interpretation of Section 8(2) of the Sexual Offences Act at the time, the court found itself bound to impose the only prescribed penalty: life imprisonment. 5. The Appellant moved the High Court in a first appeal vide HCCRA No. 38 of 2017. In its determination dated 06.02.2020, the High Court upheld the conviction, finding the evidence of identification and penetration to be safe. However, regarding the sentence, the Court found that the trial court should have considered the evolving jurisprudence following the landmark Supreme Court decision in Francis Karioko Muruatetu & Another vs Republic [2017] eKLR, which had declared the mandatory nature of the death penalty for murder unconstitutional. Consequently, the High Court set aside the life sentence and remitted the file back to the Chief Magistrate’s Court for a fresh sentencing hearing. 6. On the 2/07/2025, the Appellant appeared before the trial court where he presented evidence of his rehabilitation, stating that he was a changed person who had taken advantage of vocational programs in prison and wished to reunite with his family. The court ordered a presentencing report from the probation office and after considering it, proceeded to render its decision on sentence on the 10/09/2025. In that decision now under challenge, the learned magistrate re-imposed the life sentence. The court noted that while mitigation was heard, the legal framework for defilement of children under twelve years, as clarified by the Supreme Court in recent months, affirmed the validity of mandatory minimum sentences. The court further held that it did not have the authority to redefine life as a specific term of years, as that was a legislative prerogative. The Appeal 7. The Appellant was aggrieved by the re-imposition of the life sentence, filed the current Petition of Appeal on the 18/09/2025. The appeal is anchored on ten grounds which seek to interrogate the balance between legislative mandates and judicial independence in sentencing. The gravamen of the appeal concerns the constitutionality of indeterminate life imprisonment in the context of sexual offences, specifically focusing on whether the trial court abdicated its judicial discretion by following mandatory statutory minimums. 8. The appeal was directed to be canvassed by way of written submission which directions both sides of the appeal complied with, evidencing an obvious show of industry and vigour. Summary of the Appellant’s Submissions 9. The Appellant’s submissions focus primarily on the legal principles governing sentencing discretion and the constitutional mandate of the High Court to review indeterminate sentences. The Appellant argues that sentencing is fundamentally a judicial function under Article 160(1) of the Constitution. He contends that the trial magistrate erred by abdicating this authority to the legislature. While Parliament prescribes the range of punishment, the court retains the duty to impose a proportionate sentence within constitutional bounds. To treat the definition of a life sentence as purely legislative is a violation of the doctrine of separation of powers. 10. The Appellant submits that a life sentence without the prospect of release violates Article 28 on human dignity, Article 29(f) on freedom from cruel treatment, and Article 50(2)(q) on the right to fair trial and review. He characterizes such a sentence as death by incarceration or a living death sentence. Citing https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4595/eng@2026-02-06 2

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Vinter and Others vs United Kingdom (2013) 55 EHRR 34, he argues that continued detention without hope of release amounts to inhuman treatment. 11. Citing Article 10(3) of the ICCPR, the Appellant asserts that the essential aim of the penitentiary system is reformation. He notes that the Kenya Prisons Service motto, Kurekebisha na Haki, encapsulates this obligation. He argues that his nine years of incarceration and rehabilitative progress should have been factored into a definite term sentence. 12. Relying on the Supreme Court’s rulings in Republic vs Mwangi [2023] KESC and Republic vs Ayako [2023] KESC, the Appellant asserts that the High Court has the jurisdiction to interrogate the constitutionality of sentences, including those prescribed by statutes. He also cites Ali Abdalla Mwanza vs Republic [2019] eKLR to urge that sentences exceeding a realistic life expectancy are manifestly excessive. Summary of the Respondent’s Submissions 13. The Respondent opposes the appeal, maintaining that the sentence of life imprisonment is both appropriate and lawful under the law. The Respondent argues that the trial magistrate correctly followed the Sexual Offences Act No. 3 of 2006, Section 8(2), prescribing the penalty for the defilement of a child under twelve years to be a mandatory sentence of life imprisonment. The Respondent contends the trial magistrate could not review a sentence that was appropriate given the extreme gravity of the offence against a vulnerable minor with cerebral palsy, as an aggravating factor. 14. The Respondent relies heavily on Republic v Joshua Gichuki Mwangi [2017] eKLR, wherein the Supreme Court affirmed the constitutionality of mandatory and minimum sentences under the Sexual Offences Act with a reinstatement and clarification that its decision in Muruatetu I did not invalidate minimum sentences in other statutes. 15. The Respondent submits that defining the duration of life imprisonment is a legislative function as held by the Supreme Court in Republic v Ayako KESC 20, that it is Parliament, not the Judiciary, to set the parameters for sentencing. 16. The Respondent asserts that the trial court followed the latest guidelines, which describe life imprisonment for such offences as indeterminate. Until the legislature provides a specific definition, the Appellant must serve the sentence as imposed. The Respondent highlights that the victim’s age and significant mental disability make the offence particularly heinous. Sterner sentences are necessary to deter perpetrators and restore public trust in the justice system. Issues, Analysis and Determination 17. The dispensation of the appeal before the court rests entirely on one pertinent issue regarding the constitutionality of indeterminate life imprisonment in the context of sexual offences against minors, specifically focusing on whether the trial court abdicated its judicial discretion by following mandatory statutory minima. 18. The Appellant’s primary contention is that the mandatory life sentence is unconstitutional because it treats all offenders as an undifferentiated mass and denies the court the ability to consider individual circumstances. He relies on Article 28 of the Constitution, which guarantees that every person has inherent dignity that must be respected. He further argues that an indeterminate sentence without parole violates Article 29(f), as it amounts to cruel and degrading punishment by depriving the convict of hope. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4595/eng@2026-02-06 3

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19. This court acknowledges that the legal landscape around life imprisonment has been the subject of intense judicial debate. Notably, the Court of Appeal in Julius Kitsao Manyeso vs Republic [2023] KECA 827 eKLR had previously signalled that indeterminate life sentences were unconstitutional. That court held that life sentences should be translated into fixed terms, typically 30 years, to align with international human rights standards like the ICCPR and the ECHR’s Vinter ruling. 20. However, the Supreme Court of Kenya has recently re-intervened to clarify the constitutional position. In Republic vs Evans Nyamari Ayako (2025) KESC 20 (KLR), the apex court addressed this very tension. The Supreme Court held that while the High Court has the jurisdiction to interrogate the constitutionality of any provision, the Court of Appeal acted ultra vires by arbitrarily redefining life imprisonment as 30 years. The Supreme Court re-asserted that the mandate to define the parameters of a life sentence rests solely with Parliament under Articles 51 and 94 of the Constitution. 21. Therefore, while Article 28 and 29 protect the dignity of the Appellant, they do not invalidate the legislative choice to impose a life sentence for the most serious crimes. 22. Yet in another reinstatement of the law on the mandate to set parameters for sentences, the Supreme Court in Republic vs Joshua Gichuki Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) (Petition E018 of 2023) [2024] KESC 34 (KLR) specifically affirmed that mandatory minimum sentences for sexual offences are constitutional and necessary for deterrence and public safety. 23. The Appellant’s argument is founded on the Muruatetu I decision, which invalidated mandatory death penalties. Based on that decision, the appellant urges that that principle should be extended to life sentences under the Sexual Offences Act. This argument has been systematically rejected by the Supreme Court. However, the court wish to point that in the Muruatetu & Another v Republic; Katiba Institute & 4 Others (Amicus Curiae) (Petitions 15 & 16 of 2015) [2021] KESC 31 (KLR), the Supreme Court explicitly clarified that its decision in Muruatetu I was confined to the mandatory death penalty for murder under Section 204 of the Penal Code. 24. In Republic v Joshua Gichuki Mwangi (Petition E018 of 2023) [2025] KESC, the Supreme Court went further and faulted the Court of Appeal for misapplying Muruatetu I to the Sexual Offences Act without a proper constitutional challenge initiated at the High Court level. 25. The court is of the unwavering learning and now holds that it is bound by Article 163(7) of the Constitution, mandating that all follow the decisions of the Supreme Court. The court is thus bound by the settled decision of the Supreme Court that Muruatetu I, does not apply to the Sexual Offences Act and further that the mandatory minimum and mandatory life sentences in the Sexual Offences Act are currently lawful and constitutional and that it enjoys no liberty to depart from that straight position of the law including the reinstatement that redefining the meaning and duration of life imprisonment is a legislative task, not a judicial one. 26. Based on that settled position of the law, the court how determines that the learned trial magistrate was, therefore, not in error when he re-imposed the life sentence. He was acting in strict adherence to the doctrine of stare decisis as it stood on 10/09/2025. 27. It is thus misapprehension of the law for the appellant to take the position that the sentencing court abdicated its judicial function by failing to assert that sentencing is indeed a judicial act involving the weighing of facts, laws, and individual character. Based on the decisions of the supreme court on mandatory sentences like the life sentence under Section 8(2), the Kenyan law now dictates that the statute leaves the trial court with no discretion to impose a lesser penalty once the facts bringing the convict within that category are proven. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4595/eng@2026-02-06 4

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28. Accordingly, the instant appeal against the sentence re-imposed by the trial court on the 10th day of September 2025 lacks merits and is hereby dismissed in its entirety. The sentence of life imprisonment re-imposed by the trial court is hereby upheld. 29. Let this court file be closed. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 6TH DAY OF FEBRUARY, 2026 PATRICK J O OTIENO JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4595/eng@2026-02-06 5

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