Guiding principles in admitting an appeal to the Supreme Court as of right in a case involving the interpretation or application of the Constitution
Headnote: The appeal challenged the decision of the Court of Appeal upholding the conviction and a sentence of 30 years imprisonment of the appellant on two counts of robbery with violence. The court found that counsel or a litigant was under strict obligation to categorize his or her case, indicating the constitutional or legal category under which he or she was moving the court. The court further highlighted the guiding principles in admitting an appeal to the Supreme Court as of right in a case involving the interpretation or application of the Constitution.

Wanga v Republic (Petition E030 of 2023) [2024] KESC 38 (KLR) (2 August 2024) (Judgment)
Neutral citation: [2024] KESC 38 (KLR)
Supreme Court of Kenya
MK Koome, CJ, PM Mwilu, DCJ & V-P, MK Ibrahim, NS Ndungu & W Ouko, SCJJ
August 2, 2024
Reported by Kakai Toili
Download the Decision

Civil Practice and Procedure – appeals – appeals to the Supreme Court – form and content - whether it was mandatory for a litigant to categorize his or her case, indicating the constitutional or legal category under which he or she was moving the Supreme Court – Constitution of Kenya, 2010, article 163(4)(a) and (b).
Civil Practice and Procedure – appeals – appeals to the Supreme Court – appeals as of right in any matter relating to the interpretation or application of the Constitution – what were the principles to admit an appeal to the Supreme Court as of right in a case involving the interpretation or application of the Constitution under article 163(4)(a) of the Constitution – Constitution of Kenya, 2010, article 163(4)(a).

Brief facts
The appeal challenged the decision of the Court of Appeal upholding the conviction and a sentence of 30 years imprisonment of the appellant on two counts of robbery with violence. The appellant contended that the Court of Appeal erred by: accepting without question or analysis that the trial was conducted in a manner that was consistent with the Constitution and failing to make a finding that the trial court violated the appellant’s right to a fair trial.
The appellant thus sought for among other orders; a declaration that his constitutional rights to fair trial, including the right to a fair appeal, held consistent with the rule of law were violated; and the quashing the conviction, setting aside the sentence and setting the appellant at liberty, or in the alternative, to return the matter to the trial court for a new trial conducted in accordance with the Constitution. In opposing the appeal, the respondent contended that the issues raised for determination by the instant court were not argued in the Court of Appeal.

Issues

Held
  1. Since the two avenues of the appellate jurisdiction of the court under article 163(4)(a) and (b) of the Constitution were distinct, either as of right on the constitutional issues; or on matters of general public importance, respectively, counsel or a litigant was under strict obligation to categorize his or her case, indicating the constitutional or legal category under which he or she was moving the court. For that reason, it had become a matter of practice, for the court to independently satisfy itself that an appeal was properly lodged and that it had jurisdiction before it could entertain it.
  2. To admit an appeal under article 163(4)(a) of the Constitution, the following principles applied, in so far as they were relevant to the appeal:
    • On the issue of jurisdiction, where a court’s jurisdiction was objected to by any party to the proceedings, such an objection must be dealt with in limine as a preliminary issue, before the meritorious determination of any cause, even where the objection had been argued in the appeal itself.
    • A court’s jurisdiction flowed from either the Constitution or legislation or both; and that a court could not arrogate to itself jurisdiction exceeding that which was conferred upon it by the Constitution or law.
    • Under article 165(3)(d) of the Constitution, the High Court had original jurisdiction to hear any question respecting the interpretation of the Constitution. The Supreme Court in its appellate jurisdiction under article 163(3), subject to clauses (4) and (5) and article 163(4) (a) was the final Court on matters involving the interpretation and application of the Constitution arising from the decision of the Court of Appeal.
    • Article 163(4) of the Constitution was not a thoroughfare for all intended appeals from the Court of Appeal to the Supreme Court. Only those appeals arising from cases involving the interpretation or application of the Constitution or those that could be said to involve matters of general public importance would be entertained by the Supreme Court. It was not the mere allegation in pleadings by a party that clothed the court with jurisdiction.
    • The appeal must originate from a decision of the Court of Appeal in which the question of interpretation or application of the Constitution was at play. Where the case to be appealed from had nothing or little to do with the interpretation or application of the Constitution, it could not support a further appeal to the Supreme Court under the provisions of article 163(4(a) of the Constitution.
    • Where specific constitutional provisions could not be identified as having formed the gist of the cause at the Court of Appeal, the very least an appellant should demonstrate was that the court’s reasoning, and the conclusions which led to the determination of the issue, put in context, could properly be said to have taken a trajectory of constitutional interpretation or application.
    • In addition, a party must indicate to the court in specific terms, the issue requiring the interpretation or application of the Constitution and must signal the perceived difficulty or impropriety with the appellate court’s decision.
    • The Supreme Court retained the discretion to determine what matter was appealable to it under article 163(4)(a) of the Constitution, always bearing in mind that such a matter must be founded on cogent issues of constitutional controversy to warrant its input.
  3. Given the nature of the pleadings and proceedings before the trial court and on the other hand, the decisions of the two superior courts below, the issues did not concern the application or interpretation of the Constitution. Rather, it was an ordinary case of robbery with violence, argued as such on facts. The allegations of constitutional controversy were being canvassed for the first time before the instant court.
  4. The appellant having properly identified precisely the relevant articles of the Constitution which in his view were violated by the respondent, he was, in addition, expected to convince the court that the subject of the appeal was the same issues in controversy and around which both the High Court and the Court of Appeal based their respective decisions.
  5. The decision being challenged in the appeal had nothing to do with the interpretation or application of articles 49 and 50 of the Constitution. The appellant had not demonstrated that the Court of Appeal’s reasoning, and its conclusions took a trajectory of constitutional interpretation or application. The appellant had attempted to morph his case from an everyday trial for the offence of robbery with violence to one of violation of his constitutional rights. The appeal was nothing but an effort to take a second bite at the cherry. It presented neither exceptional circumstances nor an opportunity for the court to provide interpretive guidance on the Constitution. The court lacked jurisdiction to determine the appeal. It failed and accordingly the court downed its tools at that stage.
  6. But even as we down our tools, we consider it paramount to restate the following for the sake of posterity and the development of jurisprudence, in terms of this court’s past decisions on similar cases. In this appeal, we have observed that the High Court substituted the death sentence with a custodial sentence of 30 years imprisonment ostensibly on the authority of our decision in the Muruatetu case. This sentence was later affirmed by the Court of Appeal on second appeal, despite the court acknowledging our decision in the Muruatetu case that the mandatory nature of the death sentence only applied to murder convictions and did not extend to robbery with violence.
  7. In terms of article 163(7) of the Constitution, we expect all superior and subordinate courts, without exception to follow the noticeably clear guidelines issued in the Muruatetu directions… Our decision in the Muruatetu case did not generally invalidate mandatory sentences or minimum sentences in the Penal Code, the Sexual Offences Act, or any other statute. The decision in the Muruatetu case applies only with respect to the mandatory nature of the death sentence under sections 203 and 204 of the Penal Code and no parallel ought to be drawn beyond that statement.
Petition dismissed; no orders as to costs; the court directed that the sum of Kshs. 6,000 deposited as security for costs upon lodging of the appeal be refunded to the depositor.


Kenya Law
Case Updates Issue 013/24-25
Case Summaries
CIVIL PRACTICE AND PROCEDURE The legal requirement to obtain approval from the Data Commissioner before transferring sensitive personal data outside Kenya remained where the data subjects approved the transfer of their information and where no complaint had been filed to the Data Commissioner.

Headnote: The petitioner challenged the legality of the Scottish Court’s orders, which barred James Finlay (Kenya) Limited from pursuing local legal remedies and implementing Kenyan court orders. The petitioner argued that these orders undermined Kenya’s judicial authority, violating constitutional rights to access justice and a fair hearing. Additionally, the case addressed whether the 4th and 5th respondents had breached the Data Protection Act by transferring sensitive personal data outside Kenya without proper approval from the Data Commissioner. The court found that the High Court Practice and Procedure Rules were outdated and inadequate for enforcing foreign orders and protecting sensitive data. It ruled that significant updates to these rules were necessary. The court issued several declarations, including that foreign judgments must align with Kenyan law and that any data transfers must comply with the Data Protection Act.

Federation of Kenya Employers v Cabinet Secretary, Ministry of Foreign Affairs and International Relations & 4 others; Law Society of Kenya (Interested Party) (Petition E085 of 2023) [2023] KEELRC 3067 (KLR) (30 November 2023) (Judgment)
Neutral citation: [2023] KEELRC 3067 (KLR)

Employment and Labour Relations Court at Nairobi
B Ongaya, J

John Ribia

Download the Decision

Private International Law - enforcement of foreign judgments – conditions - what were the constitutional, legal, and policy requirements for the enforcement of foreign judgments in Kenya – what were the constitutional, legal, and policy requirements for the enforcement of foreign judgments in Kenya - Judicature Act (cap 8) section 10 Constitutional Law – judicial authority – judicial authority over work injury claims – relevant court to address work injury claims - whether ad interim orders issued by a Scottish Court that effectively prohibited James Finlay (Kenya) Limited (JFKL) from prosecuting or instituting proceedings in Kenyan courts, undermined Kenya’s judicial authority - whether the Scottish Court’s orders, though described as temporary, compliance with the orders would exhaust all available legal avenues, effectively suspending Kenyan courts’ jurisdiction over the matter - whether Scottish courts could assert jurisdiction over work injury claims especially when Kenyan law stipulated that such matters should be dealt with domestically under the Work Injury Benefits Act - whether the Scottish Court had the legal framework or expertise to apply the Work Injury Benefits Act scheme to claims related to workplace injuries that happened in Kenya – Constitution of Kenya articles 1(3), 2(1), 4(1), 22(1), 27, 31, 48, 50, 156, 159, 160, 161, and 258(1); Work Injury Benefits Act (cap 236) section 16; Foreign Judgments (Reciprocal Enforcement) Act (Cap 43)

Data Protection Law – transfer of data of Kenyans outside the country – procedure – approval of the Data Commissioner - whether the transfer of sensitive personal data of Kenyans that consented to a Scottish Court with without obtaining approval from Kenya’s Data Commissioner was violation of the requirement of data controllers/processors to obtain approval from the Data Commissioner before transferring sensitive personal data outside Kenya - whether the legal requirement to obtain approval from the Data Commissioner before transferring sensitive personal data outside Kenya still remained where the data subjects approved the transfer of their information and where no complaint had been filed to the Data Commissioner - Data Protection Act, 2019 (cap 411C) section 2, and 48 Constitutional Law – fundamental rights and freedoms – right to equal protection and benefit of the law - transfer of data of Kenyans outside the country without approval of the Data Commissioner - whether the transfer of employee sensitive personal data from Kenya to Scotland, without proper legal authorization, violated the employees’ right to equal protection and benefit of the law – Constitution of Kenya, 2010 article 27; Data Protection Act, 2019 (cap 411C) section 2, and 48

Statutes – interpretation of statutes – conflicting legal provisions - procedure of transmitting evidence to foreign courts – requirements under the High Court Practice and Procedure Rules vis-à-vis the requirements of the Data Protection Act – section 48 of the Data Protection Act vis-à-vis Part 8 of the High Court Practice and Procedure Rules - whether the provisions of the Data Protection Act, particularly section 48, which regulates the transfer of sensitive personal data outside Kenya, conflict with the procedural requirements established under Part 8 of the High Court Practice and Procedure Rules regarding the enforcement of foreign judgments and orders - whether the High Court Practice and Procedure Rules, specifically those related to the enforcement of foreign judgments and orders, required updating to align with the provisions of the Data Protection Act

Brief Facts
That petitioner has learnt that there were on-going legal proceedings between James Finlays Company and some of its workers over employment and work injuries related issues being carried out in Scotland. That there had been issued orders stopping and barring James Finlays Kenya from engaging in, participating in and or in any way pursuing any legal remedies within the court system established in Kenya. There had been proceedings in Kenya courts between the parties in which the courts in Kenya had issued injunctions stopping evidence collection for the proceedings in Scotland in a manner that was inconsistent with the laws of Kenya.
Aggrieved the petitioner filed the instant petition. The petitioner was apprehensive that any suits filed in foreign jurisdiction automatically involved data transfers of sensitive personal information involving employees in Kenya and it was imperative that Kenya law regulating such data transfers be adhered to. The petitioner contended that the proceedings in Scotland and the orders issued by Scottish courts undermined the judicial authority of Kenyan courts.

Issue:

  1. Whether ad interim orders issued by a Scottish Court that effectively prohibited James Finlay (Kenya) Limited (JFKL) from prosecuting or instituting proceedings in Kenyan courts, undermined Kenya’s judicial authority.
    1. Whether the Scottish Court’s orders, though described as temporary, compliance with the orders would exhaust all available legal avenues, effectively suspending Kenyan courts’ jurisdiction over the matter.
  2. What were the constitutional, legal, and policy requirements for the enforcement of foreign judgments in Kenya?
  3. Whether Scottish courts could assert jurisdiction over work injury claims especially when Kenyan law stipulated that such matters should be dealt with domestically under the Work Injury Benefits Act.
  4. Whether the Scottish Court had the legal framework or expertise to apply the Work Injury Benefits Act scheme to claims related to workplace injuries that happened in Kenya.
  5. Whether the transfer of sensitive personal data of Kenyans that consented to a Scottish Court with without obtaining approval from Kenya’s Data Commissioner was violation of section 48 of the Data Protection Act which required data controllers or processors to obtain approval from the Data Commissioner before transferring sensitive personal data outside Kenya.
  6. Whether the legal requirement to obtain approval from the Data Commissioner before transferring sensitive personal data outside Kenya still remained where the data subjects approved the transfer of their information and where no complaint had been filed to the Data Commissioner.
  7. Whether the transfer of employee sensitive personal data from Kenya to Scotland, without proper legal authorization, violated the employees’ right to equal protection and benefit of the law under article 27 of the Constitution.
  8. Whether the 4th and 5th respondents’ actions in recruiting individuals and filing suits in Scotland in a manner incompatible with Kenyan law rendered those foreign proceedings illegal and unenforceable in Kenya.
  9. Whether allegations of professional misconduct by an advocate of the High Court of Kenya should first be addressed through the statutory mechanisms provided under the Advocates Act, including the Advocates Complaints Commission and Disciplinary Tribunal, before being brought before a court.
  10. Whether the provisions of the Data Protection Act, particularly section 48, which regulates the transfer of sensitive personal data outside Kenya, conflict with the procedural requirements established under Part VII of the High Court Practice and Procedure Rules regarding the enforcement of foreign judgments and orders.
  11. Whether the High Court Practice and Procedure Rules, specifically those related to the enforcement of foreign judgments and orders, required updating to align with the provisions of the Data Protection Act.

Held:

  1. The petitioner had the locus standi to institute the proceedings. The petitioner had not stated that it was filing the petition on behalf of the Judiciary, or the Law Society of Kenya, or on behalf of any one single employer, or employee. The petition was a representative member-based organization that advocated for the rights of employers. Article 258 (1) of the Constitution provided that every person had the right to institute court proceedings claiming that the Constitution had been contravened or was threatened with contravention. The petitioner was entitled to file the petition upon that constitutional entitlement. The petitioner had satisfied article 258 (2)(b), (c) or (d) which in addition to 258(1), was a person acting as a member of, or in the interest of, a group or class of persons (in this case employers); was a person acting in the public interest (namely to safeguard the integrity of Kenya’s legal or justice system); or, was an association acting in the interest of one or more of its members.
  2. The petitioner enjoyed standing as of right to protect the Constitution and to safeguard interests of its employer-members. The petitioner in the instant matter was a party and was not acting for a party to proceedings like Advocates were entitled to do under the Advocates Act.
  3. The instant petition had set out the complaint and the provisions deemed to have been violated. It met the muster for a constitutional petition.
  4. The Scottish Court’s orders undermined Kenya’s judicial authority, restricted the Kenyan Judiciary’s sovereign functions, and violated constitutional provisions, including the right to access justice and a fair hearing. The ad interim orders given by the Scottish Court on August 22, 2022, effectively barred James Finlay (Kenya) Limited from prosecuting its case (ELRCPET/E133/2022) or instituting similar proceedings in Kenya. It also prohibited the implementation of Kenyan court orders issued on July 28, 2022, regarding the same matter.
  5. The Scottish Court’s orders undermined the judicial authority of Kenyan courts, effectively suspending the Kenyan court's power to exercise its jurisdiction. Such orders violated articles 48 and 50 of the Constitution, which protected the right to access justice and a fair hearing. If the Scottish orders were labeled as temporary, their effect was permanent, as compliance would leave no further legal actions to be taken. For foreign orders to be enforced in Kenya, they must pass constitutional, legal, and policy tests. Any foreign judgment must be consistent with Kenya's Constitution, public policy, and laws.
  6. Both the Scottish and Kenyan courts had jurisdiction over JFKL. Under the Civil Jurisdiction and Judgments Act 1982, the parties could have agreed to take a dispute to a particular court, but they had not done so. The employment contracts only stipulated that Kenyan law was to apply to any claims for workplace injury, not that such claims had to be raised in the Kenyan courts. As such, the Court of Session had jurisdiction to hear the claims.
  7. In terms of Kenyan law, the group members’ injuries were covered by the Work Injuries Benefits Act (WIBA) and therefore had to be dealt with under the WIBA scheme. The Court of Session had no experience of applying the WIBA scheme. In theory, the court could only award the same amount of compensation as would be awarded by the Director in Kenya. Those matters pointed towards Kenya being the appropriate forum.
  8. The appropriate course of action was to pause the Scottish proceedings pending resolution of the claims under WIBA. The Scottish Court could not say that the WIBA system was unable to provide the group members with substantial justice. If the claims were not determined in accordance with WIBA, or if there was excessive delay in their determination, the court may require to recall the pause. The claims should be progressed in Kenya under WIBA.
  9. The 4th and 5th respondents were bound by section 48 of the Data Protection Act, which required data controllers or processors to obtain approval from the Data Commissioner before transferring sensitive personal data outside Kenya. Even though the employees may have consented to the transfer, the respondents were obligated to ensure the Data Commissioner was informed and satisfied with the security and protection measures in place. Although no complaint was filed with the Data Commissioner, the legal duty to obtain approval from the Commissioner remained. Subject to the provisions of section 48 of the Act, while the data subjects may have given consent, nevertheless, the section required the data subjects to be protected by the Data Commissioner in terms of section 48 of the Data Protection Act. There was a need for judicial and governmental assistance in the enforcement of foreign orders related to data.
  10. One office to be involved in transferring data to a foreign jurisdiction where the assistance of the Kenya Government and the High Court was obtained would be the Data Commissioner per section 48 of the Data Protection Act, and, the provisions of the Act would have to be taken into account in updating the High Court (Practice and Procedure) Rules in the Judicature Act.
  11. On account of the doctrine of justiciability, the appropriate measure was for the merits of whether the 5th respondent had breached or not breached the Advocates Practice Rules, 1966 to be determined on merits, as of first instance, in accordance with the provisions of the Advocates Act. The availability of that elaborate statutory process and procedure operated as a bar to the court delving into the 5th respondent’s alleged professional misconduct so as not to defeat the established statutory design that provides for adequate safeguards and reliefs to involved parties including the 5th respondent. The court had warned itself to decline determination of the issue for want of exhaustion of the statutory process and procedure and which had not been shown to be unavailable or incapable of being invoked and continued in the instant claims and allegations. The Advocates Act provided for the Advocates Complaints Commission for the purpose of enquiring into complaints against any advocate, firm of advocates, or any member or employees thereof and the Commission may refer a complaint in breach of professional discipline to the Disciplinary Tribunal established under Part XI. The said Part XI had elaborate provisions for receiving and hearing complaints against an advocate of professional misconduct, which included disgraceful or dishonourable conduct incompatible with the status of an advocate.
  12. The dispute surrounding the instant proceedings point to significant challenges and gaps in the implementation of the Work Injury Benefits Act towards the expeditious, fair, just, and proportionate determination of the assessments for compensation and disputes under the Act. In that consideration the Cabinet Secretary for Labour and Social Protection and 2nd respondent were to take appropriate measures for legislative reforms towards removing the challenges and gaps in the no-fault regime envisaged under the Act. Such reforms would include focus on matters such as the expeditious, fair, just, and proportionate determination of the assessments for compensation and determination of disputes under the Act including instituting the relevant efficient and effective procedural safeguards; the defined role and guidelines for Designated Health Practitioners in assisting the Director of Occupational Safety and Health to undertake the assessments and make awards; comprehensive inclusion of specific work injuries with provisions for dealing with residual injuries not listed; periodic review of the formulae and measure of the awards to be made in given occupational injuries, diseases or deaths; step by step procedures for administering various aspects of the Act; and, prompt compliance or enforcement of the awards under the Act.

Petition allowed.

Orders

  1. The Cabinet Secretary for Labour and Social Protection and 2nd respondents were to take appropriate participatory measures for legislative reforms towards removing the significant challenges and gaps in the implementation of the no-fault design of the Work Injury Benefits Act towards the expeditious, fair, just, and proportionate determination of the assessments for compensation and determination of disputes under the Act including instituting the relevant efficient and effective procedural safeguards, the role and guidelines for Designated Health Practitioners in assisting the Director of Occupational Safety and Health to undertake the initial and second assessments (in event of objections) and for expeditious making of awards across the Counties; comprehensive inclusion of specific work injuries with provisions for dealing with residual injuries not listed, and, prompt compliance or enforcement of the awards under the Act, and, a progress report be filed in Court within 12 months from the date of the instant judgment; and the petitioner were to serve the judgment within 7 days for that purpose.
  2. Declaration issued that all persons had a right of access to justice and an absolute right to a fair hearing and no foreign court or order could be used to impede or stop the enjoyment of that right within the Republic of Kenya.
  3. Declaration issued that Kenyan Courts had jurisdiction to try for any matter arising from causes of action that arose in Kenya in which parties were domiciled and operated in Kenya.
  4. Declaration issued that judgments and orders issued by courts in foreign countries were not enforceable in Kenya unless their enforcement was sought in the manner prescribed by law.
  5. Declaration issued that no documentary evidence being sensitive personal data under the Data Protection Act could be presented from within Kenya to a foreign court unless the same had been collected in a manner established by the Data Protection Act and other relevant law.
  6. Declaration issued that judgments and orders issued by courts based in foreign countries and which judgments or orders were not compatible with the Kenyan Constitution could not be enforced or given effect to within the Republic of Kenya.
  7. Declaration issued that the act of the 4th and 5th respondents recruiting individuals and filing suits in foreign jurisdictions in a manner incompatible with Kenyan law was illegal and therefore null and void and orders emanating from any such proceedings could not be enforced in Kenya.
  8. . Declaration issued that the Director of Occupational Health and Safety Services had the jurisdiction to deal with work injury claims arising from employment relationships within the Republic of Kenya under section 16 of the Work Injury Benefits Act at first instance and the Scottish Courts had no jurisdiction at all, unless, by law, otherwise established.
  9. Declaration issued that any person dissatisfied with the decision of Director of Occupational Health and Services in exercise of the authority under the Work Injury Benefits Act would have redress in the Employment and Labour Relations Court of Kenya and not the Scottish Courts or any other foreign jurisdiction, unless, by law otherwise established.
  10. Declaration issued that any transfer of data from Kenya for use in a foreign jurisdiction could only be undertaken, inter alia, within the framework of section 48 of the Data Protection Act.
  11. Declaration issued that the act of the 4th and 5th respondents collecting and transmitting data outside the Republic of Kenya was incompatible with the provisions of section 48 of the Data Protection Act and constituted a violation of the right to equal protection and benefit of the law under article 27 of the Constitution.
  12. Declaration issued that the 4th and 5th respondents or their agents should forthwith stop, cease to aid, abet, assist or in any manner participate in the prosecution of the Scottish proceedings styled GP/22 in the Scottish Courts or any other similar proceedings in Scotland without first observing the mandatory constitutional and statutory provisions applicable in furthering any prosecution of a suit in a foreign court as required under Kenyan law and with respect to employment relationships and causes of action accruing within the Republic of Kenya.
  13. Declaration that the act of the 4th and 5th respondents collecting and transmitting evidence to foreign courts in a manner incompatible with Part 8 of the High Court Practise and Procedure Rules violated the right to equal protection and benefit of the law under article 27 of the Constitution.
  14. Each was party to bear their costs of the suit.
FAMILY LAW

Sentence of being detained at the President’s leisure declared unconstitutional.

Headnote:The petitioner, convicted of murder and found to be under eighteen, was sentenced to detention at the President's pleasure under section 25(2) of the Penal Code. Challenging that, the petitioner argued that such indefinite detention violated the constitutional right of a child to be detained only as a last resort and for the shortest period. The High Court ruled that section 25(2) was unconstitutional, as it failed to provide a definite sentence, contrary to article 53(1)(f) of the Constitution. The court declared the provision unconstitutional and substituted the indefinite sentence with a fixed fourteen-year term, effective from the date of initial detention.

Baariu v Republic (Petition (Application) E021 of 2022) [2023] KEHC 21136 (KLR) (27 July 2023) (Judgment)
Neutral citation: [2023] KEHC 21136 (KLR)
High Court at Meru
LW Gitari, J

Reported by John Ribia

Download the Decision

Constitutional Law – fundamental rights and freedoms – rights of the child – right of a child not to be detained except as a measure of last resort and when detained to be held for the shortest appropriate period of time – constitutionality of section 25(2) of the Penal Code, that provided that a person charged with the offence of murder who was tried and convicted and it appeared to the court that he was under eighteen years, a sentence of death shall not be pronounced but in lieu thereof shall sentence such person to be detained during the president pleasure – whether the provision was unconstitutional - whether the provision was a violation of right of a child not to be detained except as a measure of last resort and when detained to be held for the shortest appropriate period of time – Constitution of Kenya, 2010 articles 53(1)(f)(i) and 160 (1); Penal Code (cap 63) section 25(2)

Brief facts:
The petitioner was charged with murder contrary to section 203 as read with section 204 of the Penal Code in the High Court of Kenya. The petitioner pleaded not guilty and after a full trial he was found guilty. The trial court held that the age of the petitioner was not clearly known and therefore sentenced him to serve at the President’s pleasure. The appellant was dissatisfied with the decision and filed an appeal in the Court of Appeal at Nyeri. The appeal was however not successful and was dismissed.
The appellant was dissatisfied with the decision and filed an appeal in the Court of Appeal at Nyeri. The appeal was however not successful and was dismissed. Further aggrieved the petitioner filed the instant petition in which he sought a declaration that sentencing a child found guilty of murder to serve at the president pleasure is unconstitutional

Issu es:

  1. Whether section 25(2) of the Penal Code, that provided that a person charged with the offence of murder who was tried and convicted and it appeared to the court that he was under eighteen years, a sentence of death shall not be pronounced but in lieu thereof shall sentence such person to be detained during the president pleasure, was unconstitutional.
  2. Whether section 25(2) of the Penal Code, that provided that a person charged with the offence of murder who was tried and convicted and it appeared to the court that he was under eighteen years, a sentence of death shall not be pronounced but in lieu thereof shall sentence such person to be detained during the president pleasure, was a violation of right of a child not to be detained except as a measure of last resort and when detained to be held for the shortest appropriate period of time.

Held:

  1. The High Court had jurisdiction under article 165 of the Constitution to determine the question whether any law was inconsistent with the constitution and whether anything said to be done under the authority of the constitution or any law was inconsistent with or in contravention of the constitution.
  2. Section 25(2) of the Penal Code provided that a person charged with the offence of murder who was tried and convicted and it appeared to the court that he was under eighteen years, a sentence of death shall not be pronounced but in lieu thereof shall sentence such person to be detained during the president pleasure. The sentence was in-determinate as the convict was held at the president’s pleasure without specifying the period of such detention.
  3. Section 25(2) and (3) of the Penal code was unconstitutional. The petitioner had been in prison since February 7, 2013. Article 53(1)(f) of the Constitution stated that every child had a right not to be detained except as a measure of last resort and when detained to be held for the shortest appropriate period of time. The petitioner had been in custody for ten years. He was supposed to be held for the shortest appropriate period. He was treated as a child who was below 18 years as his age was not known. He had been held in prison for ten years. He was supposed to serve a definite sentence which was as short as possible. Considering the serious nature of the offence which he was charged with, a sentence of fourteen years would suffice.

Petition allowed.

Orders

  1. Declaration made that that section 25(2) and (3) of the Penal Code was unconstitutional as it violated article 53(1)(f)(1) and article 160 (1) of the Constitution.
  2. The sentence that he be held at President’s pleasure was set aside.
  3. The petitioner was sentenced to serve fourteen (14) years Imprisonment which was to run from February 7, 2013 the date he was detained in prison at the president’s pleasure.