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Supreme CourtAllowedPetition E002 of 2024· [2025] KESC 20 (KLR)

Republic v Ayako

Supreme Court of Kenya
11 April 2025
Philomena Mbete MwiluPM MwiluMohammed Khadhar IbrahimMK IbrahimSmokin Charles WanjalaSC WanjalaNjoki Susanna NdunguNjoki NdunguIsaac LenaolaI Lenaola
7,008 words in judgment
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The bottom line

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Supreme Court reinstates life sentence for defilement, ruling Court of Appeal overstepped its powers.

What this practically means

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The Supreme Court has overturned a Court of Appeal decision that reduced a life sentence for defilement to 30 years. The Court ruled that the Court of Appeal acted beyond its authority by deciding on the constitutionality of life imprisonment, which only the High Court can do under Article 165(3)(d). It also said the Court of Appeal improperly created a new sentence, a power reserved for Parliament under Article 94. The life sentence is now reinstated.

Executive summary

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The Supreme Court allowed the appeal by the Office of the Director of Public Prosecutions against the Court of Appeal's decision that had substituted a life imprisonment sentence with 30 years for the respondent, who was convicted of defilement under Section 8(2) of the Sexual Offences Act. The Court held that the Court of Appeal acted ultra vires by assuming original jurisdiction over the constitutionality of life imprisonment, a mandate of the High Court under Article 165(3)(d) of the Constitution, and by usurping the legislative function under Article 94 by setting a term sentence without parliamentary authority. Additionally, the Court found that the Court of Appeal violated the doctrine of stare decisis by applying the ratio decidendi of Muruatetu I to the mandatory minimum sentence in the Sexual Offences Act, contrary to the Supreme Court's clear directions in Muruatetu II and Republic v Mwangi. The Supreme Court reinstated the High Court's judgment, restoring the life imprisonment sentence, and ordered each party to bear their own costs. The Court also criticized the appellant for inconsistency in supporting the substitution of the sentence at the Court of Appeal and then appealing against it, noting that such conduct erodes public confidence in the justice system.

Key legal issues

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01

Whether the Court of Appeal acted ultra vires in substituting life imprisonment with 30 years.

Holding

The Court of Appeal acted ultra vires because it assumed original jurisdiction over the constitutionality of life imprisonment, which is a mandate of the High Court under Article 165(3)(d), and it usurped the legislative function by setting a term sentence without parliamentary authority.

Reasoning

The Supreme Court held that the issue of the constitutionality of life imprisonment was not raised before the High Court, so the Court of Appeal improperly assumed original jurisdiction. Additionally, under Article 94 of the Constitution, only Parliament can make laws with the force of law, and setting a term sentence for life imprisonment is a legislative function. The Court of Appeal's action violated the separation of powers and was arbitrary, as it was done without public participation or legislative input.

p. 15
02

Whether in applying the Muruatetu II case the Court of Appeal violated the doctrine of stare decisis.

Holding

Yes, the Court of Appeal violated the doctrine of stare decisis by applying the ratio decidendi of Muruatetu I to the mandatory minimum sentence in the Sexual Offences Act, contrary to the Supreme Court's clear directions in Muruatetu II and Republic v Mwangi that the Muruatetu rationale applies only to the mandatory death penalty for murder.

Reasoning

The Supreme Court had previously clarified in Muruatetu II that the rationale in Muruatetu I was limited to the mandatory death penalty for murder under sections 203 and 204 of the Penal Code. In Republic v Mwangi, the Court further held that applying Muruatetu to minimum sentences under the Sexual Offences Act violated stare decisis. The Court of Appeal ignored these binding precedents, thereby undermining consistency, certainty, and predictability in the law.

p. 16

Legal principles established

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  • Only the High Court can decide if a sentence is constitutional, not the Court of Appeal.
  • Courts cannot create new sentences; that power belongs to Parliament alone.
  • The Muruatetu ruling applies only to murder cases, not to sexual offences.
  • Lower courts must follow Supreme Court precedents, or they violate stare decisis.
  • A court cannot substitute a life sentence with a fixed term without legal authority.

Court orders

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  1. 1.The Appeal dated February 1, 2024 is allowed.
  2. 2.The Judgment of the High Court is hereby reinstated.
  3. 3.For the avoidance of doubt, the respondent shall serve life imprisonment as sentenced by the Magistrates’ Court.
  4. 4.Parties shall bear their own costs.
  5. 5.We hereby direct that the sum of Kshs.6,000/= deposited as security for costs upon lodging of this appeal, be refunded to the appellant.

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 2(5)
  • Constitution of Kenya, 2010Article 2(6)
  • Constitution of Kenya, 2010Article 27
  • Constitution of Kenya, 2010Article 28
  • Constitution of Kenya, 2010Article 51
  • Constitution of Kenya, 2010Article 51(3)
  • Constitution of Kenya, 2010Article 94
  • Constitution of Kenya, 2010Article 157
  • Constitution of Kenya, 2010Article 163(4)(a)
  • Constitution of Kenya, 2010Article 163(7)
  • Constitution of Kenya, 2010Article 164(3)
  • Constitution of Kenya, 2010Article 165(3)(d)
  • Supreme Court Act, Cap 9BSection 2
  • Supreme Court Act, Cap 9BSection 3A
  • Supreme Court Act, Cap 9BSection 15(2)
  • Supreme Court Act, Cap 9BSection 15A
  • Sexual Offences Act, Cap 63ASection 8(1)
  • Sexual Offences Act, Cap 63ASection 8(2)
  • Sexual Offences Act, Cap 63ASection 11(1)
  • Appellate Jurisdiction Act, Cap 9Section 3
  • Criminal Procedure Code, Cap 75Section 361
  • Criminal Procedure Code, Cap 75Section 361(1)
  • Criminal Procedure Code, Cap 75Section 361(2)
  • Judicature Act, Cap 8Section 3(1)(a)(b)(c)
  • Office of the Director of Public Prosecutions Act, Cap 6BSection 3
  • Prevention of Terrorism Act, Cap 59BSection 4(1)
  • Prevention of Terrorism Act, Cap 59BSection 4(2)
  • Prevention of Organized Crimes Act, Cap 59
  • Counter Trafficking in Persons Act, Cap 61Section 3(5)
  • Counter Trafficking in Persons Act, Cap 61Section 3(6)
  • Counter Trafficking in Persons Act, Cap 61Section 4(3)
  • Counter Trafficking in Persons Act, Cap 61Section 5(d)
  • Counter Trafficking in Persons Act, Cap 61Section 7
  • Counter Trafficking in Persons Act, Cap 61Section 9
  • Counter Trafficking in Persons Act, Cap 61Section 10
  • Narcotics and Psychotropic Substances Act, Cap 245

Cases cited (10)

  • Manyeso v Republic
    Criminal Appeal No. 12 of 2021 [2023] KECA 827 (KLR)
  • Muruatetu & Another v Republic; Katiba Institute & 4 Others (Amicus Curiae)
    Petitions Nos. 15 & 16 of 2015 [2021] KESC 31 (KLR)
  • Muruatetu & Another v Republic; Katiba Institute & 5 Others (Amicus Curiae)
    Petitions Nos. 15 & 16 of 2015 [2017] KESC 2 (KLR)
  • Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 Others (Amicus Curiae)
    Petition No. E018 of 2023 [2024] KESC 34 (KLR)
  • Samuel Kamau Macharia & Another v Kenya Commercial Bank Limited & 2 Others
    Application No. 2 of 2011 [2012] KESC 8 (KLR)
  • In the Matter of the Interim Independent Electoral Commission
    Constitutional Application No. 2 of 2011 [2011] KESC 1 (KLR)
  • Ngoge v Kaparo & 5 Others
    Petition No. 2 of 2012 [2012] KESC 7 (KLR)
  • Asanyo & 3 Others v Attorney-General
    Petition 7 of 2019 [2020] KESC 62 (KLR)
  • Jasbir Singh Rai & 3 Others v Tarlochan Singh Rai & 4 Others
    Petition 4 of 2012 [2014] KESC 31 (KLR)
  • Gore v United States
    357 US 386, 78 S Ct 1280, 2 L. Ed. 2d 1405 (1958)
On appeal from
Court of Appeal at Kisumu
Criminal Appeal No. 22 of 2018
Jurisdiction invoked
Article 163(4)(a) of the Constitution, Sections 3A, 15A, 15(2) and 2 of the Supreme Court Act, Cap 9B

Key timeline

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2024-02-01
ODPP files appeal against Court of Appeal decision reducing life sentence to 30 years.
2025
Supreme Court allows appeal, reinstates life imprisonment for defilement.

Practical implications

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For lawyers

Stick to jurisdictional limits on appeal

When challenging sentences, ensure constitutional issues were first raised in the High Court. The Court of Appeal cannot assume original jurisdiction over constitutionality. Also, avoid relying on Muruatetu for sexual offences; it only applies to murder. Cite Muruatetu II and Republic v Mwangi to block such arguments.

For businesses

No impact on business operations

This ruling does not affect businesses directly. It concerns criminal sentencing for defilement under the Sexual Offences Act. However, it reinforces that Parliament, not courts, sets penalties. Businesses should note that courts will not alter statutory minimum sentences, ensuring predictability in criminal law.

For individuals

Life sentence stands for defilement

If you or someone you know is convicted of defilement under Section 8(2) of the Sexual Offences Act, the mandatory life sentence is now firmly upheld. The Supreme Court has blocked any attempt by lower courts to reduce it. Legal challenges must focus on the High Court, not the Court of Appeal.

Frequently asked questions

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Can the Court of Appeal reduce a life sentence for defilement in Kenya?+

No, the Supreme Court has ruled that the Court of Appeal cannot substitute a life sentence with a fixed term like 30 years. Only Parliament can change sentences, and only the High Court can decide if a sentence is constitutional. The Court of Appeal overstepped its powers in this case.

Does the Muruatetu case apply to sexual offences in Kenya?+

No, the Supreme Court clarified that the Muruatetu ruling applies only to the mandatory death penalty for murder. It does not apply to minimum sentences under the Sexual Offences Act. Using Muruatetu to challenge a defilement sentence violates the principle of stare decisis.

What is the current sentence for defilement under Section 8(2) in Kenya?+

The sentence is life imprisonment, as set by the Sexual Offences Act. The Supreme Court reinstated this sentence after the Court of Appeal tried to reduce it to 30 years. Courts cannot create new sentences; only Parliament can amend the law.

Can I appeal a life sentence for defilement in Kenya?+

Yes, but you must first raise any constitutional issues in the High Court. The Court of Appeal cannot decide on the constitutionality of a sentence if it was not argued in the High Court. Also, you cannot rely on the Muruatetu case for sexual offences.

Later judgments citing this (25)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Republic v Ayako", Case Analysis (2025). Petition E002 of 2024. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2025/20/eng@2025-04-11

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.