🔍 When Courts Choose Procedure Over Justice: A Missed Opportunity to Rethink Mandatory Life Sentences

The Supreme Court of Kenya recently delivered its decision in the case of Evans Nyamari Ayako v Republic, overturning the Court of Appeal’s progressive ruling that had reduced a mandatory life sentence for defilement to a 30-year term. The Supreme Court held that the Court of Appeal lacked jurisdiction to reconsider the constitutionality of life imprisonment in this context, stating that such questions were not raised at the High Court level and that Muruatetu I was misapplied.

As CELSIR, we respectfully disagree with the reasoning and implications of the Supreme Court’s judgment.⚖️ The Heart of the Matter: Is Mandatory Life Imprisonment Constitutional?

At the center of the Court of Appeal’s decision was a bold and necessary question: Does mandatory life imprisonment violate the Constitution?

The Court of Appeal applied the principles from Muruatetu & Another v Republic — which declared the mandatory death penalty unconstitutional — to argue that mandatory life imprisonment equally offends human dignity, due process, and the right to mitigation. It concluded that sentencing must allow judges to consider individual circumstances and the potential for rehabilitation.

But the Supreme Court took a narrower route, arguing that:

• The Court of Appeal lacked jurisdiction to deal with constitutional questions not raised earlier;
• Muruatetu I was specific to murder cases and should not apply to other mandatory sentences; and
• Equating life imprisonment to a fixed term (like 30 years) amounts to judicial overreach.

In doing so, the Court missed a rare opportunity to expand Kenya’s constitutional promise of individualized, human rights-centered justice.

📉 When Procedure Trumps Substance

The Supreme Court’s focus on procedural constraints raises a deeper question: What happens when strict adherence to technicalities overrides the pursuit of justice?

Yes, appellate courts must operate within the law — but where the matter at hand touches on a person’s liberty, dignity, and potential for reformation, we believe the law must bend toward justice, not bureaucracy. Denying the opportunity to examine the constitutionality of a sentence — simply because the issue was not raised earlier — limits the transformative power of appellate courts to redress injustice.

🌍 A Global Shift Away from Mandatory Sentencing

Across the globe, courts are retreating from the idea that justice can be one-size-fits-all.

• In South Africa, courts have held that mandatory minimums must still allow for judicial discretion.
• In India, the Supreme Court has recognized that excessive sentences without the opportunity for parole may violate human dignity.
• Even in the United States, courts are increasingly skeptical of life without parole — particularly for juveniles and non-homicidal offenders.

By insisting that Muruatetu applies only to death penalty cases, the Kenyan Supreme Court has placed an artificial boundary around the Constitution’s guarantee of human dignity — one that risks entrenching injustice for thousands of persons serving mandatory terms for robbery, sexual offenses, or drug-related crimes.

🧩 Life Imprisonment ≠ Justice by Default

At CELSIR, we have represented numerous individuals sentenced to life under mandatory provisions — some barely adults, others victims of abuse, trauma, or mental illness, and many first-time offenders who never got a chance to speak in mitigation.

Mandatory life imprisonment:

• Ignores the unique facts of each case;
• Treats rehabilitation as irrelevant; and
• Denies courts the flexibility to impose just, proportionate sentences.

We believe this is incompatible with a Constitution that promises fairness, dignity, and the right to a second chance.

📢 What Next?

This judgment is not the end of the road — but a call to action.

We need:

• Strategic public interest litigation directly challenging the constitutionality of mandatory life sentences;
• Parliamentary review of sentencing laws under the Sexual Offences Act and the Penal Code to introduce judicial discretion; and
• Awareness campaigns that educate the public on the importance of fair sentencing and the real meaning of justice.

🔺 Final Word: Justice Must Evolve

The Court of Appeal saw the law not as a cage, but as a compass. The Supreme Court, unfortunately, chose the cage. As CELSIR, we will continue to advocate for sentencing that heals, not just punishes — and for a justice system that values dignity, discretion, and humanity.

Because justice is not merely about punishment — it’s about fostering positive change, ensuring safer communities, and supporting the rehabilitation of offenders.

Article By:

Anne Munyua

Founder & Executive Director (ED)

CELSIR