On the 12^th July 2024, the Supreme Court of Kenya (SCORK) rendered its decision on an appeal by the Director of Public Prosecutions which challenged the Court of Appeal (CoA) judgment that had overturned the High Court’s ruling in Republic v. Joshua Gichuki Mwangi. The High Court had upheld the Magistracy decision sentencing an accused to the mandatory minimum penalty of 20 years imprisonment having found him guilty of defilement contrary to Section 8(3) of the Sexual Offences Act (SoA).

The basis of the CoA’s decision was that Section 8(3) of the SoA imposed a mandatory minimum sentence which impinged on the separation of powers doctrine as it arrogated to the legislature the judicial power to determine appropriate sentences, disregarding the intricacies appreciated by judges on a case-to-case basis. While SCORK ultimately overruled the CoA on a procedural issue (and soundly so), this piece considers three problematic issues with SCORK’s decision.

The flaw in SCORK’s reasoning.

Making reference to its Muruatetu decision [69], which declared the mandatory death sentence contained in Section 204 of the Penal Code unconstitutional, and the Muruatetu guidelines [14], SCORK opined that Muruatetu was not to be applied by subordinate courts as a judicial precedent for the striking of other statutory provisions similarly prescribing mandatory or minimum sentences [52]. This edict from SCORK amounts to judicial despotism, as it irrationally hamstrings the freedom of courts to apply legal reasoning and stare decisis. While the Muruatetu guidelines directed that the decision was only applicable to Section 204 of the Penal Code, nothing should impinge other courts from using the Muruatetu jurisprudence to reason and arrive at a conclusion that other statutory provisions are unconstitutional. The sound ratio decidendi in Muruatetu can and should be used to strike down other unconstitutional statutory provisions.

Secondly, SCORK, attempted to create a distinction between mandatory sentences and minimum sentences, stating that the latter prescribe the floor, not the ceiling, while the former are sentences without discretion [55] – [56]. This interpretation is flawed since minimum sentences have a similar resultant effect as mandatory sentences, which is the denial of judicial discretion in sentencing. Minimum sentences render nugatory the accused’s right to mitigating circumstances which was recognized by SCORK in paragraph 46 as part of their constitutional rights under Article 50(2). Judges are deprived of an opportunity to consider the factual circumstances of each case, such as “Romeo and Juliet” instances where two minors agree to have sex despite not being capable of legally consenting to sex.

SCORK further indicated that the term mandatory minimum sentences, while applicable in other jurisdictions such as the USA, is not applicable in Kenya [56]. Once again, SCORK fails to provide any rationale behind its conclusion as to the inapplicability of the term mandatory minimum sentences and only declares so by what seems to be a single sentence, devoid of any historical context information or consideration of preparatory works informing legislation.

Thirdly, SCORK acknowledges that courts in jurisdictions such as USA, Canada, Australia, as well as the European Court of Human Rights have struck down mandatory life imprisonment and minimum sentences. SCORK however says that Kenyan Courts are yet to determine that the above trends by these foreign courts are persuasive to it since there is no case law that has been brought to the Courts [62]. This statement is a lie. The High Court, which has jurisdiction to determine constitutional issues, such as mandatory and minimum sentences has in three decisions declared the unconstitutionality of minimum sentences, to wit, Kaburucho v Republic, Maingi v Director of Public Prosecutions and Wachira v Republic. Similarly, the CoA has considered the mandatory minimum sentencing cases in Wambui v Republic and Evans Wanjala Wanyonyi v R.

It is once again astonishing that SCORK failed to recognize the strides made by these courts (all of which are clothed with jurisdiction to and did in fact determine the constitutional issue on mandatory minimum sentences) simply because these matters have not been appealed to SCORK. One is forced to draw the rather unpalatable inference that according to SCORK, no other Court’s decision, however so properly constituted, can adjudicate on the issue except SCORK itself. This is a rather elitist approach taken by SCORK which not only fails to foster collegiality within judicial ranks but also flies in the face of Article 164(3) and 165(3)(d) of the Constitution which clothe these courts with requisite jurisdiction.