High Court judge Nixon Sifuna made a groundbreaking decision declaring life sentence as archaic, absurd, unreasonable and incompatible with modern societal values. 

The judge said life imprisonment is undignifying and undermines the right to human dignity enshrined in Article 28 of the Kenyan Constitution 2010.

“For the aforegoing reasons, I find that the life sentence is not only archaic in the present civilization, but also unreasonable and absurd. It is also an undignifying sentence, hence violates the right to human dignity, guaranteed under Article 28 of the Kenya Constitution 2010,” Sifuna said.

The decision arose from an appeal where a father was found guilty of molesting his 10 year old daughter and was sentenced to life Imprisonment.

The judge said, the court needs to state days months or years when imposing a term of imprisonment.

“It is a deceptive sentence, in that one commences it thinking that he will one day complete it and be released from prison, later he realizes it is imprisonment that he can never and will never complete or fully serve no matter how hard he serves or keeps counting days.”

He said life sentence is akin to a death sentence.

“One of the common denominators in the two is that once sentenced, “the convict is permanently deleted from society and will never return into it, except through perhaps a stealthily escape or daring dash in a prison break.”

The convict committed the offence on May 18, 2017 , at the Wemba location in Muranga county.

Kigumo senior principal magistrate sentenced him to life Imprisonment, dissatisfied with the judgement he filed an appeal seeking to quash the conviction and set aside the sentence.

In the appeal, Sifuna noted that the prosecution proved all the ingredients of the offence of incest including the required standard of beyond reasonable doubt.

He said the prosecution called several witnesses including the said child and medical expert and produced documents to prove four essentials, “proof of blood relationship to required degree of consanguinity, proof of the indecent act, identity of the perpetrator and proof of age of the victim”.

However, the court found that the duration of the sentence imposed on the convict, “is pegged on the unknown lifetime and unknown date of death of the convict.”

“Having found that the trial court properly convicted the Appellant, his Appeal on conviction fails, and I uphold the said conviction accordingly. As to the life sentence that the Appellant is currently serving. I set it aside and substitute it with a sentence of 10 (ten) years imprisonment, effective from 21st July 2022 the date of the current sentence. The Appellant’s Appeal herein has therefore succeeded partially, as to sentence only,” he ruled.

“Whereas it is philosophically and supposedly imprisonment for a duration of time only, it is in actual sense imprisonment that is indeterminable, indefinite, uncompletable, mathematically incalculable, and therefore quantifiable only for the convict’s entire remainder of his lifetime. It is a deceptive sentence, in that one commences it thinking that he will one day complete it and be released from prison.”

“Later he realizes that it is imprisonment he can never and will never complete or fully serve, no matter how hard he serves or keeps counting days. The more he races to complete it, the longer and eternally elusive it becomes. The more he serves it, the more it drifts ayonder to beyond the horizons. Logically, after serving it for long, he stops serving it and lets the sentence serve him and remain his lifestyle for the entire remainder of your lifetime!” he said.

The ruling comes eight months after Court of Appeal declared life imprisonment unconstitutional.

Justices Pauline Nyamweya, Jessie Lesiit and George Odunga all agreed that the purpose of jailing a person is to either deter, denounce, retribute or rehabilitate for the offence committed.

They argued that it was totally unfair to outlaw mandatory death sentence, only for a person to be locked in prison till death.

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