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Supreme CourtPartially AllowedPetition E013 of 2024

Republic v Manyeso

Supreme Court of Kenya
11 April 2025
Philomena Mbete MwiluM. MwiluMohammed Khadhar IbrahimM.K. IbrahimSmokin Charles WanjalaS.C. WanjalaNjoki Susanna NdunguNjoki NdunguIsaac LenaolaI. Lenaola
9,205 words in judgment
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·~37 min to read original · ~4 min brief

The bottom line

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

What this practically means

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The Supreme Court has reinstated a life sentence for a man convicted of defiling a 4½-year-old girl. The Court of Appeal had reduced the sentence to 40 years, but the Supreme Court said the lower court went too far. The Court of Appeal wrongly decided a constitutional issue that was never raised in the trial court or High Court. It also misapplied a previous Supreme Court ruling on mandatory sentences. The Supreme Court stressed that only Parliament, not judges, can change what a life sentence means.

Executive summary

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The Supreme Court allowed the Republic's appeal against the Court of Appeal's decision that had declared life imprisonment under section 8(2) of the Sexual Offences Act unconstitutional and substituted it with a 40-year sentence for the respondent, Julius Kitsao Manyeso, who had been convicted of defiling a 4½-year-old girl. The Supreme Court held that the Court of Appeal acted ultra vires by assuming original jurisdiction on a constitutional issue—the constitutionality of life imprisonment—that was never raised at the trial court or the High Court. The Court of Appeal violated the principle of stare decisis by misapplying the Supreme Court's decision in Muruatetu, which the Supreme Court had expressly limited to the mandatory death sentence for murder and had clarified did not invalidate mandatory or minimum sentences in the Sexual Offences Act or any other statute. The Court of Appeal further erred by substituting the life sentence with a determinate 40-year term, thereby usurping the legislative power to define sentences, which is a function of Parliament under Article 94 of the Constitution. The Supreme Court reinstated the life imprisonment sentence imposed by the trial court and affirmed by the High Court, ordered each party to bear their own costs, and directed that the security for costs be refunded to the appellant.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether this court has jurisdiction to hear and determine the appeal.
  2. 2.Whether the court of appeal acted ultra vires and without jurisdiction by assuming original jurisdiction on a constitutional issue not raised at the superior court.
  3. 3.Whether the Court of Appeal violated the principles of stare decisis by misapplying the decision in Muruatetu cases in finding that the sentence of life imprisonment was unconstitutional.
  4. 4.Whether the Court of Appeal erred in law by substituting the life imprisonment sentence with 40 years sentence without a clear legislative basis.

Key legal issues

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01

Whether the Court of Appeal acted ultra vires by assuming original jurisdiction on a constitutional issue not raised at the High Court.

Holding

The Court of Appeal acted ultra vires because the constitutionality of life imprisonment was not raised at the trial court or High Court, and the Court of Appeal cannot determine such an issue for the first time on appeal.

Reasoning

The Supreme Court found that the issue of the constitutionality of life imprisonment under the Sexual Offences Act was neither canvassed before the trial court nor the High Court. The Court of Appeal, by addressing it as a fresh constitutional question, assumed original jurisdiction. The court relied on section 361(1) of the Criminal Procedure Code, which bars the Court of Appeal from considering the severity of sentence as a matter of fact, and on its own precedent in Republic v Mwangi and Gitonga v Republic, which held that the Court of Appeal cannot entertain issues not raised in the lower courts. The court also noted that the High Court has original jurisdiction under Article 165(3)(b) to determine constitutional questions, and the proper channel is to file a constitutional petition there, not to raise it for the first time on appeal.

p. 3
02

Whether the Court of Appeal violated the principle of stare decisis by misapplying the Muruatetu decision.

Holding

The Court of Appeal violated stare decisis by extending the Muruatetu ratio to invalidate life imprisonment under the Sexual Offences Act, contrary to the clear directions of the Supreme Court that Muruatetu only applies to the mandatory death sentence for murder.

Reasoning

The Supreme Court reiterated that its Muruatetu directions explicitly stated that the decision did not invalidate mandatory or minimum sentences in the Penal Code, the Sexual Offences Act, or any other statute. The Court of Appeal, however, held that the reasoning in Muruatetu equally applies to mandatory indeterminate life sentences, which directly contradicted the Supreme Court's binding directions. The Supreme Court emphasized that under Article 163(7), all courts are bound by its decisions, and failure to adhere to precedent disrupts uniformity, consistency, and predictability. The Court of Appeal's misapplication created confusion and uncertainty in the law.

p. 20
03

Whether the Court of Appeal erred in law by substituting life imprisonment with a 40-year sentence, thereby usurping legislative powers.

Holding

The Court of Appeal erred by substituting the sentence, as defining what constitutes a life sentence is a legislative function, not a judicial one, and the court's action violated the doctrine of separation of powers.

Reasoning

The Supreme Court held that Article 94 of the Constitution vests legislative authority in Parliament. While courts have the power to interpret the constitutionality of statutes, they cannot amend or rectify them. The Muruatetu decision itself recommended that the Attorney General and Parliament develop legislation on what constitutes a life sentence, acknowledging that it is not for the court to define it. By substituting the life sentence with a determinate 40-year term, the Court of Appeal effectively amended section 8(2) of the Sexual Offences Act, usurping the legislative function. The court cited its own practice of making recommendations for legislative intervention rather than prescribing remedies itself.

p. 21

Legal principles established

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  • The Court of Appeal cannot decide a constitutional issue for the first time on appeal if it was not raised in the lower courts.
  • The Supreme Court's Muruatetu decision does not invalidate mandatory or minimum sentences in the Sexual Offences Act or other statutes.
  • Courts cannot substitute a life sentence with a fixed term because defining sentences is a legislative, not judicial, function.
  • Lower courts must follow Supreme Court precedent; misapplying it violates the principle of stare decisis.
  • The High Court has original jurisdiction to hear constitutional petitions; the Court of Appeal cannot assume that role.

Court orders

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  1. 1.The petition of appeal is allowed.
  2. 2.The life imprisonment sentence imposed by the trial court and affirmed by the High Court is hereby reinstated.
  3. 3.The respondent, Julius Kitsao Munyeso should therefore complete the life imprisonment sentence imposed by the trial 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.

The bench

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One judgment of the whole court — no separate or dissenting opinions.

Philomena Mbete Mwilu
M. MwiluDCJ
Currently serving
majority
Mohammed Khadhar Ibrahim
majority
Smokin Charles Wanjala
S.C. WanjalaSCJ
Currently serving
majority
Njoki Susanna Ndungu
Njoki NdunguSCJ
Currently serving
majority
Isaac Lenaola
I. LenaolaSCJ
Currently serving
majority
On appeal from
Court of Appeal at Malindi
Criminal Appeal No 12 of 2021
Jurisdiction invoked
Article 163(4)(a) of the Constitution

Relief refused

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Declaration that the judgement of the Court of Appeal at Malindi delivered on the July 7, 2023 is unlawful.

The Court of Appeal's judgment was set aside, but the specific declaration sought was not granted; instead the appeal was allowed and the life sentence reinstated.

p. 21

Declaration that substituting life imprisonment with a 40-year imprisonment is unlawful.

The court found the substitution unlawful but did not issue a separate declaration; it set aside the Court of Appeal's decision and reinstated the life sentence.

p. 21

Declaration that the indeterminate nature of life imprisonment shall be defined by Parliament and not the courts.

The court held that defining life imprisonment is a legislative function but did not issue a standalone declaration; it relied on the Muruatetu directions.

p. 20

Declaration that a life imprisonment sentence is unconstitutional.

The court rejected this relief, holding that the life sentence remains lawful.

p. 21

Costs

Parties shall bear their own costs.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

the Court of Appeal acted ultra vires when it determined in the first instance whether the life sentence imposed upon the respondent was constitutional.
p. 3 Jurisdiction of the Court of Appeal
We therefore find that the Court of Appeal violated the principle of stare decisis by misapplying the decision in Muruatetu and in finding the life sentences of imprisonment to be unconstitutional.
p. 20 Stare decisis and misapplication of precedent
We therefore find no difficulty in finding that the Court of Appeal erred in law by substituting the life imprisonment sentence with a 40-year sentence, thereby usurping the legislative power to define sentences.
p. 21 Separation of powers and legislative function
The petition of appeal is allowed.
p. 21 Final orders
The life imprisonment sentence imposed by the trial court and affirmed by the High Court is hereby reinstated.
p. 21 Final orders
Parties shall bear their own costs.
p. 4 Costs order

Key timeline

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Unknown
Julius Kitsao Manyeso convicted of defiling a 4½-year-old girl and sentenced to life imprisonment by the trial court.
Unknown
High Court affirms the life sentence on appeal.
Unknown
Court of Appeal declares life imprisonment unconstitutional under the Sexual Offences Act and substitutes it with a 40-year sentence.
2025-01-31
Supreme Court allows the Republic's appeal, reinstates the life sentence, and orders Manyeso to complete it.

Practical implications

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For lawyers

Limit appeals to issues raised below

When appealing a criminal sentence, do not raise new constitutional challenges for the first time at the Court of Appeal. The Supreme Court has made clear this is ultra vires. If you want to challenge the constitutionality of a sentence, file a constitutional petition at the High Court under Article 165(3)(b). Also, avoid relying on Muruatetu to attack mandatory sentences under the Sexual Offences Act; this judgment confirms that argument is dead.

For businesses

No direct impact on business law

This case deals specifically with criminal sentencing under the Sexual Offences Act and does not create new obligations for businesses. However, it reinforces the principle that courts cannot rewrite statutes. If your business relies on a regulatory framework with fixed penalties, note that only Parliament can change those penalties. Courts will not step in to reduce them on constitutional grounds unless the challenge is properly raised at the High Court first.

For individuals

Life sentence remains for child defilement

If you are convicted of defiling a child under 11 years old, you face a mandatory life sentence. The Court of Appeal cannot reduce that sentence to a fixed number of years unless Parliament changes the law. The Supreme Court has now reinstated life imprisonment for such cases. If you believe a sentence is unconstitutional, you must file a constitutional petition at the High Court, not raise it for the first time on appeal.

Frequently asked questions

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

No, not without a proper constitutional challenge first raised at the High Court. The Supreme Court ruled that the Court of Appeal cannot decide the constitutionality of a life sentence for the first time on appeal. Only Parliament can change what a life sentence means.

Does the Muruatetu case apply to life sentences in Kenya?+

No. The Supreme Court clarified that its Muruatetu decision only applies to the mandatory death sentence for murder. It does not invalidate mandatory or minimum sentences in the Sexual Offences Act or any other law. Life imprisonment for child defilement remains valid.

What is the sentence for defiling a child under 11 in Kenya?+

Under section 8(2) of the Sexual Offences Act, the sentence is life imprisonment. The Supreme Court has now confirmed this is constitutional and cannot be reduced by a court to a fixed term like 40 years. Only Parliament can change the law.

Can I challenge a life sentence as unconstitutional in Kenya?+

Yes, but you must file a constitutional petition at the High Court under Article 165(3)(b). You cannot raise the issue for the first time at the Court of Appeal. The Supreme Court has made clear that the Court of Appeal has no original jurisdiction to hear such challenges.

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 Manyeso", Case Analysis (2025). Petition E013 of 2024. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2025/16/eng@2025-04-11

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