“Justice is not a machine; it is a moral force.” — Lord Denning

In the recent judgment of Evans Nyamari Ayako v Republic, the Supreme Court of Kenya reversed a powerful and progressive ruling by the Court of Appeal. The case involved a man convicted of defilement and sentenced to mandatory life imprisonment — a sentence upheld by both the trial and High Court. The Court of Appeal, however, had reduced the sentence to a 30-year term, citing the evolving standards of justice and the unconstitutionality of mandatory life sentences under the reasoning of Muruatetu but the Supreme Court held otherwise.

They ruled that the Court of Appeal had:

  • Acted without jurisdiction by addressing the constitutionality of life imprisonment since it wasn’t raised in the High Court;
  • Misapplied stare decisis, since Muruatetu applied only to mandatory death sentences for murder; and
  • Overstepped judicial authority by effectively rewriting legislation — equating life imprisonment to a fixed term of 30 years.

On my part, I respectfully disagree.

🔍 The Core Issue: Procedure vs Justice

This decision places legal procedure over substantive justice. The Court focused on technical grounds, jurisdiction and precedent, rather than seizing the opportunity to interrogate the proportionality, fairness, and humanity of Kenya’s mandatory sentencing laws.

Mandatory sentences offer no room for judicial discretion, robbing courts of the chance to consider factors like:

  • Age and background of the offender;
  • Mental health or trauma history; and
  • Genuine remorse or rehabilitation potential.

Surely, a Constitution founded on dignity, fairness, and transformative justice demands more than a one-size-fits-all approach.

🌍 A Global Movement Away from Mandatory Sentencing

Other jurisdictions are recognizing that mandatory sentences can be unjust:

  • South African courts allow departure from minimums if they’re deemed disproportionate.
  • The Indian Supreme Court has flagged life sentences without parole as potentially unconstitutional.
  • In the US, courts are increasingly cautious with life sentences, especially for juveniles.

Kenya should not lag behind. The Muruatetu reasoning must extend beyond murder because human dignity is indivisible.

⚖️ The Work Ahead

This decision does not close the door on reform. It sharpens the focus. CELSIR will continue to:

  • Pursue strategic litigation to challenge mandatory sentences under other statutes;
  • Engage Parliament to review sentencing laws that violate the Constitution; and
  • Support individuals serving disproportionate sentences through mitigation, mental health assessments, and reintegration.

🧭 In Conclusion

The Court of Appeal tried to chart a more compassionate course. The Supreme Court steered us back into rigid waters.

At CELSIR, we believe:

Justice must be tailored. Sentences must be humane. Courts must remain free to listen, assess, and exercise their sentencing prerogative.

Because when the law forgets the human being, we all lose.

Article By:

Anne Munyua

Founder & Executive Director (ED)

CELSIR