The Supreme Court has declined to hold that life imprisonment should translate to 30 years in jail.
The Supreme Court has declined to determine what constitutes ”life imprisonment,” saying that should be left to Parliament, not the courts.
While dismissing two appeals filed by defilement convicts, the apex court further declined to hold that life imprisonment should translate to 30 years in jail.
A bench of five judges presided by Deputy Chief Justice Philomena Mwilu said courts cannot extend their determination to rectifying or amending a statute as this would contravene the doctrine of separation of powers, which delineates the functions of the Judiciary, Legislature, and the Executive.
“Courts must exercise caution when crafting remedies to avoid overstepping their judicial mandate and intruding upon legislative functions by prescribing or enacting amendments,” said the judges.
Justices Mwilu, Mohammed Ibrahim, Smokin Wanjala, Njoki Ndung’u and Isaac Lenaola further said court cannot delve into the question of the constitutionality of the sentence of life imprisonment, as it has not been raised and determined by the High Court and cascaded through the proper channels.
The judges went ahead and quashed 30 years and 40 years imposed on Evans Nyamari Ayako and Julius Kitsao Manyeso respectively and reinstated the earlier sentence of life imprisonment imposed on them by magistrates’ courts.
The apex court said by ascribing a term of 30 years to be the equivalent to life imprisonment, the Court of Appeal usurped the powers of the Legislature and went outside its mandate and powers.
“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,” said the judges.
The court added that the term of 30 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,” added the court.
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They pointed out that Article 94 of the constitution vests Parliament with the power to make provisions with the force of law.
The judges added that it 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.
The Supreme Court recommend that the Attorney General and Parliament to commence an enquiry on the 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,” said the judges.
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