Appeals Court rules life sentence is unconstitutional

The Court of Appeal has declared life imprisonment to be unconstitutional.

The landmark judgment now alters the matrix on how courts will prefer charges against capital offenders and those convicted for defilement.

Justices Pauline Nyamweya, Jessie Lesiit and George Odunga unanimously agreed that it is unfair to outlaw mandatory death sentences, only to order a person to remain behind bars until they die.

According to the three judges, the purpose of jailing a person is to either deter, rehabilitate, denounce, or retribute for the offence committed.

However, they asserted that a life sentence should not mean the natural life of a prisoner.

"We are equally guided by this holding by the Supreme Court of Kenya, and in the instant appeal, we are of the view that having found the sentence of life imprisonment to be unconstitutional, we have the discretion to interfere with the said sentence," the bench headed by Justice Nyamweya ruled.

The judges were determining an appeal filed by Julius Kistao against the State. Kitsao was charged with defiling a four-year-old minor.

The magistrate's court handed him a life sentence.

Neighbour's house

In his unsworn response to the allegations, Kistao stated that on the material day, January 20, 2013, he heard noises at his neighbour's house.

Upon checking, Kitsao stated, he reported to the village elder but was beaten and taken to the police.

In October of the same year, the magistrate handed him a life sentence. He appealed the decision before the High Court, however, Justice Reuben Nyakundi dismissed his case.

Undeterred, he moved to the Court of Appeal. His argument was that he was not served with the witness statements and was not assigned an advocate during the hearing. Kitsao also argued that Section 8 (2) of the Sexual Offence Act is unconstitutional for giving a mandatory life sentence.

The convict stated that at the time he was brought to court, he was 15 years. However, an age assessment indicated that he was 18 years at the time he was committing the offence.

The judges observed that in his mitigation, Kitsao did not plead that he was young at the time.

Further, they were of the view that his actions toward the minor were likely to affect her life.

They directed that he instead serves 40 years for deterrence and rehabilitation. "We accordingly set aside the sentence of life imprisonment imposed on the appellant and substitute therefor a sentence of 40 years in prison to run from the date of his conviction," ruled the judges.

An analysis of convicted persons between 2019 and 2021 indicates that Kenya had 511 convicts, among them four women, handed a life sentence in 2019. In 2020, there were at least 128 men and two women imprisoned for life while in 2021, some 268 men and five women were jailed for life.

The appeal bench criticised the decision to commute the death sentence to life. According to the judges, although the Supreme Court found the death sentence to be legal and the same has remained legal to date, it serves no purpose as the last person to be handed death was Hezekia Ochuka who was senior private in the Kenya Air Force.

Kenya's only mode of killing prisoners is through hanging. Ochuka was hanged on July 9, 1987, at Kamiti Prison, at the age of 33 after being found guilty of the failed 1982 coup.

According to Justices Nyamweya, Lesiit, and Odunga, those on death row have for the last 38 years been getting life sentences through presidential committals.

"Therefore, for all practical purposes, in terms of execution of the sentences, life sentence, and death sentence seem to mean the same thing in this country," they argued.

"While the death sentence is retained in statute books, in reality, and for all practical purposes, it no longer exists. However, it is not for us to delete it from the statute books. What is however clear is that in terms of execution, there is no distinction between a death sentence and a life sentence."

The judges were of the view that an indeterminate sentence is not an incentive for an offender to reform, instead, it is simply a slow death sentence.

In a similar but separate case last month, justices Nyamweya, Lesiit and Odunga determined an appeal filed by David Kiteme.

Murder case

On June 9, 2023, the trio quashed the life sentence handed to him and ordered that he serves 25 years.

Kiteme had been accused of killing Bahati John on the eve of May 22, 2014, in Taita Taveta County.

The accused denied the charges.

At the heart of the murder case was Kiteme's disabled niece. The man is said to have accused her of stealing, after which he assaulted her using a sick.

The 17-year-old girl was hit with a blunt object on her head and was bleeding internally after her veins in the head raptured. It was argued that Kiteme might have used either a stone or a stick to inflict the fatal injuries.

In his defence, the convict stated that he found the deceased had eaten the food that had been prepared. Being unhappy, he said, he decided to discipline her using a cane.

He stated that his niece was not disabled, instead, she was epileptic.

Kiteme further denied that he hit her on the head. He claimed that he went to a nearby shop, bought some vegetables, cooked, ate and went to sleep in his room. High court Judge Jaqueline Kamau had handed him a life sentence.

She said he needed time to reflect in jail on his offending behaviour. While handing over the sentence, the judge also stated that there was also a need to protect female members of his family.

In his appeal, Kiteme argued that Justice Kamau should have found him guilty of manslaughter instead of murder as he had not premeditated to kill the teenager. Although the three judges found that he had a hand in his niece's death, they were of the view that the sentence was too harsh.

According to the judges, though Kiteme's conduct was unlawful, the High Court judge ought to have considered that he was taking care of his mother who was then 80 years and he was a first-time offender.

They set aside the sentence and substituted it with 25 years.

"While that might not have justified the appellant's conduct, it was a factor that ought to have been taken into account in passing the sentence. Further, it was the prosecution's case that the appellant was a first offender. There is no indication on the record that these factors were taken into account in passing the sentence,'' they ruled.

Justices Nyamweya, Odunga, and Lessit observed that Kiteme was in jail all through the trial. They ordered that his sentence should run from May 27, 2014, meaning he has at least two and half years remaining.