Ireri v Republic (Miscellaneous Criminal Application E020 of 2025) [2025] KEHC 17715 (KLR) (26 November 2025) (Judgment)
Neutral citation:
[2025] KEHC 17715 (KLR)
Republic of Kenya
Miscellaneous Criminal Application E020 of 2025
RM Mwongo, J
November 26, 2025
IN THE MATTER OF ARTICLES 2 (1) (6), 3 (1), 10 (2) (b), 19, 22 (1), 25 (a), 27 (1), (2), (4), 28, 29 (a), (d) and (f), 50, 159 (2) (a), 165 (3) (b) (d) OF THE
CONSTITUTION
AND
IN THE MATTER OF SECTION 216 & 326 OF THE CRIMINAL PROCEDURE
CODE
AND
IN THE MATTER OF SECTION 296 (2) OF THE PENAL CODE
Between
Francis Kinyua Ireri
Petitioner
and
Republic
Respondent
Judgment
The Petition/Application
1.Through a petition dated 23rd August 2024 and amended on 22nd July 2025, the petitioner is seeking orders as follows:1.This Honourable Court be pleased to issue a declaration that indeterminate sentence of life imprisonment is unconstitutional in so far as it violates the Articles 28 and 29(d) of the Constitution by failing to give regard to not only his dignity as [a] human [being] but also failing to prevent their subjection to inhuman and degrading treatment;2.This this Court be pleased to issue a declaration that indeterminate sentences of life imprisonment are unconstitutional in so far as they violate the inherent right to a fair trial as envisaged under Article 50 of the Constitution;3.This Court be pleased to issue a declaration that indeterminate sentences of life imprisonment are unconstitutional in so far as they violate Article 2(5) and (6) of the Constitution through their noncompliance with international laws and Instruments which Kenya is a party to through its ratification;4.This Court be pleased to issue a declaration that indeterminate sentences of life imprisonment are unconstitutional in so far as they violate the objectives of sentencing as stipulated under the Judiciary Sentencing Guidelines;5.This Court be pleased to issue a declaration that indeterminate sentences of life imprisonment are unconstitutional in so far as they violate Article 27 of the Constitution owing to lack of legislation catering for remission and or Parole;6.This Court be pleased to issue a declaration that the Petitioner herein is entitled to have his case reviewed and the same be set aside and be commuted to time served;7.This court be pleased to make a probation order in the circumstance that the order (f) above is not met;8.The Honourable court declares that section 46 of the Prisons Act is unconstitutional to the extent that it excludes prisoners serving life sentences from remission, thereby violating Articles 27, 28 and 29 of the Constitution; and9.The Court be pleased to make further such other order(s) as it shall deem just.
2.The petitioner referred to his rights as provided for under Article 50 of the Constitution and as interpreted by the courts in the cases of Ouma v Republic [2021] KEHC 13707 (KLR), Vinter and Others v. the United Kingdom [GC] - 66069/09, 130/10 and 3896/10, László Magyar v. Hungary (Application no. 73593/10) and Muruatetu & another v Republic; Katiba Institute & 5 others (Amicus Curiae) [2017] KESC 2 (KLR) (Muruatetu 1). He argued that his rights under the Constitution have been violated and he specified the constitutional provisions he alluded to.
3.He stated that the indeterminate nature of the life imprisonment sentence is discriminatory and offends the Constitution as it takes away the dignity of a person. That it perpetrates the unequal treatment of persons, yet Article 50(1)(2)(q) of the Constitution affords him the right to review of his sentence and to benefit from the least available punishment in law. That it is inhumane and even contravenes Article 10 of the International Covenant on Civil and Political Rights (ICCPR) and Article 10 of the United Nations Standard Minimum Rules for the treatment of Prisoners (Mandela Rules).
4.The petitioner also sought to challenge the constitutionality of section 46 of the Prisons Act on grounds that it does not provide for remission for a prisoner serving a life imprisonment sentence yet allows so automatically for others on term sentences. It was his argument that the provision violates Article 28 of the Constitution on the right to dignity and Article 29(d) which provides for protection from cruel and inhumane treatment.
5.The petitioner urged the court to review his sentence to time served and consider releasing him from incarceration.
Grounds of Opposition
6.The respondent filed grounds of opposition stating that the court does not have the discretion to review the life imprisonment sentence that the petitioner is serving. That only the legislature has the power to review a sentence since it is the law-making branch of government. It argued that the court lacked jurisdiction to entertain the petition.
Parties’ Submissions
7.The application was canvassed by way of written submissions.
8.The petitioner submitted that he was convicted of the offence of robbery with violence and was sentenced to death. Through a presidential decree, the death sentence was commuted to life imprisonment. So far, he has been in prison for 18 years. He brought the petition to challenge the constitutionality of the life imprisonment sentence that he is currently serving. Under section 46 of the Prisons Act, he is not eligible for remission, and he now argues that the provision is both prejudicial and unconstitutional.
9.In his submissions, the petitioner relied on the Judiciary Sentencing Policy Guidelines, 2023, The NCAJ Guidelines 2023 and the cases of Muruatetu 1, Manyeso v Republic [2023] KECA 827 (KLR) and Mbugua & 9 others v Attorney General & 3 others [2025] KEHC 1248 (KLR). He argued that the mandatory life imprisonment or death sentences violate provisions of the Constitution on the right to life and non-discrimination. Further reliance was placed on the cases of S v Dodo (CCT 1/01) [2001] ZACC 16; 2001 (3) SA 382 (CC) and S v Vries and Others (CR 27/2024) [2024] NAHCMD 138 in which it was held that:
10.He also relied on Muruatetu 1 and argued that Section 46(1)(ii) pf the Prisons Act is unfair and discriminatory. He relied on Article 7 of the ICCPR and the United Nations Standard Minimum Rules for the treatment of Prisoners (Mandela Rules). Finally, referred to the accolades he gathered while in prison and argued that he has since reformed and that the sentence should be reviewed to time served.
11.On its part, the respondent relied on Articles 23(1) and 165(3)(a,b) and submitted that the petitioner’s rights were not violated. Further reliance was placed on the case of Jackson Maina Wangui v Republic [2012] KEHC 3013 (KLR) where the court held that the question of how long a life imprisonment sentence should be is a preserve of the legislature to determine. That according to the Court of Appeal in Igiro v Republic [2023] KECA 926 (KLR) life imprisonment sentence was not invalidated by the Supreme Court in Muruatetu 1.
12.In fact, it argued that the Supreme Court charged the Attorney General to present the issue to Parliament for legislation. Regarding the issue concerning the alleged unconstitutionality of section 46(2)(ii) of the Prisons Act, the respondent relied on the case of Vincent Sila Jona & 87 others v Kenya Prison Service & 2 others [2021] KEHC 13027 (KLR). There, it was held that not all prisoners are eligible for sentence reduction. That the right to remission is not an automatic constitutional entitlement. It urged the court to dismiss the petition.
Issues for Determination
13.The core issues for determination is whether the petition has merit
Analysis and Determination
14.The applicant was initially sentenced to death by the trial court. That sentence was however, commuted to life imprisonment through a Presidential decree. Essentially, the petitioner is in fact tangentially seeking resentencing from 2 angles: First, based on the argument that the indeterminate nature of the life imprisonment sentence is unconstitutional; and Secondly, on the argument that since his sentence cannot be remitted as provided under section 46(2)(ii) of the Prisons Act, that provision should be declared unconstitutional.
15.On the first argument that the indeterminate nature of the life imprisonment sentence is unconstitutional, the Court of Appeal widely discussed the issue in the cases of Manyeso v Republic [2023] KECA 827 (KLR), and Ayako v Republic [2023] KECA 1563 (KLR). In these 2 cases, the Court of Appeal found indeterminate sentences to be unconstitutional and reduced the life imprisonment sentence to a defined number of years. These 2 decisions were, however, overturned on appeal by the Supreme Court in Republic v Ayako [2025] KESC 20 (KLR) and Republic v Manyeso [2025] KESC 16 (KLR).
16.In its decisions in the Ayako and Manyeso cases, the Supreme Court stated that the role of the court is limited to interpretation of the law and it does not extend to altering sentences already imposed in law. The court stated that law review is a preserve of the legislature and that the sentences provided under statute should be applied as they are without alteration. To that extent, the respondent is correct to say that this court lacks authority to review the life imprisonment sentence.
17.The second limb of the petitioner’s argument is that challenging the constitutionality of section 46(2)(ii) of the Prisons Act on the grounds that it excludes remission for prisoners serving life imprisonment sentences. The section provides:
18.The impugned provision has 3 limbs; the first refers to prisoners imprisoned for life; The second to prisoners for the offence under section 296(2) of the Penal Code; and the Third to prisoners detained at the President’s pleasure. This particular question of the constitutionality of the second limb of that provision was raised before Odunga, J. (as he then was) in Sammy Musembi Mbugua & 4 others v Attorney General & another [2019] KEHC 4698 (KLR) before the High Court in Machakos. The Judge held:
19.Section 296 (2) of the Penal Code provides for the sentence of death for robbery whilst armed with a dangerous weapon, whilst in the company of one or more other people.
20.In Sammy Musembi Mbugua’s case the Judge went on to order that:
21.In his reasoning in the same case, Odunga, J. (as he then was) addressed the first limb of the impugned provision as such:
22.The sentiments of Korir, J. (as he then was) in Brown Tunje Ndago v Commissioner-General of Prisons [2019] KEHC 6512 (KLR) as relied upon by Odunga, J. (as he then was) resoundingly answer the petitioner’s question as to the constitutionality of the first limb of the impugned provision for prisoners sentenced to imprisonment for life. A sentence of life imprisonment is for an indefinite term. Such term is incalculable for purposes of remission. Even if this indefinite term was to be remitted how much of it would be taken away? What would be the appropriate formula to remit a part of a life imprisonment sentence and what would such remittal be?
Conclusions and Disposition
23.It is not until Parliament defines what number of years constitutes life imprisonment that the impugned provision can come under attack successfully. That is to say, once a sentence becomes determinable, there is no reason why remission should not be applied to it in accordance to section 46 of the Prisons Act. Therefore, at this point in time, there is no legal basis to declare the first limb of section 46(2)(ii) of the Prisons Act as unconstitutional.
24.It would appear that the petitioner herein was seeking the overall outcome of sentence review. For now, his endevour unfortunately remains unsuccessful, and he must pursue other ingenious means to achieve that outcome as the law evolves every day.
25.In the result, the petition lacks merit and it is hereby dismissed.
26.Orders accordingly.
DELIVERED, DATED AND SIGNED AT EMBU HIGH COURT THIS 26TH DAY OF NOVEMBER, 2025.R. MWONGOJUDGEDelivered in the presence of:Applicant Present in CourtOlao holding brief for Abubakar for Petitioner/AccusedMs. Nyika for the RespondentFrancis Munyao - Court Assistant