Fantu v Republic (Miscellaneous Criminal Application E008 of 2025) [2026] KEHC 12206 (KLR) (31 July 2026) (Ruling)

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT LODWAR** **MISC. CRIMINAL APPLICATION NO. E008 OF 2025** **MAKONEN FANTU…………….…………….……..……..…..…………....…….……APPLICANT** **VERSUS** **REPUBLIC………………………………….………………………..........….………..RESPONDENT** **RULING** **The Application** 1. . By an undated application, the Applicant invites this Court to exercise the jurisdiction conferred upon it by Article 165(3)(b) of the Constitution of Kenya, 2010. He seeks, first, a review of the sentence of life imprisonment imposed upon him following his conviction for the offence of defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act by substituting it with a determinate custodial sentence pursuant to Articles 50(2)(p) and 50(2)(q) of the Constitution. Secondly, he prays that the Court gives effect to section 333(2) of the Criminal Procedure Code by taking into account the period he spent in lawful remand custody before conviction and sentence. 2. The application is supported by the Applicant's affidavit and has been urged by way of written submissions. He contends that developments in sentencing jurisprudence since the determination of his appeal have fundamentally altered the legal understanding of indeterminate life imprisonment. Consequently, he urges the Court to reconsider the sentence imposed upon him in light of Articles 27, 28 and 50(2)(p) of the Constitution. In support of that contention, he relies on **Evans Wanjala Wanyonyi v Republic, Criminal Appeal No. 312 of 2017,** and **Jared Kiiti Injiri v Republic, Criminal Appeal No. 93 of 2014,** in which the Court held that a sentence which renders mitigation of no practical value is unjustifiable, discriminatory and inconsistent with the constitutional guarantee of equality before the law. 3. The Applicant further contends that the sentencing court failed to comply with section 333(2) of the Criminal Procedure Code by failing to take into account the period he spent in lawful custody before sentence. He therefore urges the Court to give effect to that provision in computing the sentence ultimately imposed. **Response to the Application** 1. The Respondent did not file any Replying Affidavit in opposition but has filed written submissions resisting the grant of the orders sought. The first point taken is that this Court lacks jurisdiction to entertain the application on the ground that the Applicant's conviction and sentence were affirmed on appeal and that the Court is consequently *functus officio*. In support of that proposition, reliance is placed on **Harrikissoon v Attorney General of Trinidad and Tobago [1980] AC 265.** 2. The Respondent further submits that Article 165(3)(b) of the Constitution cannot be invoked as a substitute for the appellate process or as a collateral mechanism for reopening criminal proceedings that have attained finality. 3. The Respondent also contends that life imprisonment remains a lawful sentence for the offence of defilement and that there has been no legislative amendment introducing a lesser sentence capable of attracting the benefit of Article 50(2)(p) of the Constitution. 4. With regard to section 333(2) of the Criminal Procedure Code, the Respondent submits that the issue ought to have been raised before the trial court or on appeal and cannot properly found the present application. In support of that submission, reliance is placed on **Speaker of the National Assembly v Karume [1992] KLR 21, Samuel Kamau Macharia & Another v Kenya Commercial Bank Ltd & 2 Others [2012] eKLR, Ahamad Abolfathi Mohammed & Another v Republic [2018] eKLR** and **Bethwel Wilson Kibor v Republic [2009] eKLR.** **Issues, Analysis and Determination** 1. Having considered the application, the rival submissions and the authorities relied upon by the parties, the Court is of the view that the following issues arise for determination: 2. **Whether the present application is properly before this Court?** 3. **Only if in the affirmative, whether the Applicant has established a basis for the reconsider of the sentence of life imprisonment imposed by the trial court?** 4. **Whether the Applicant is entitled to the benefit of section 333(2) of the Criminal Procedure Code?** **Whether the present application is properly before this Court?** 1. The Respondent raises a threshold objection to the competence of the present application, contending that this Court lacks jurisdiction to entertain it because the Applicant's conviction and sentence were affirmed on appeal and the Court is therefore *functus officio*. Since jurisdiction is foundational, that objection falls for determination before the merits of the application can be considered. 2. The record shows that the Applicant was charged before the Chief Magistrate's Court at Lodwar with the offence of defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act. Upon conviction, he was sentenced to life imprisonment. Aggrieved by both conviction and sentence, he preferred an appeal before this Court in Criminal Appeal No. 853 of 2011. By a judgment delivered on 8th March 2017, the appeal was dismissed and both the conviction and sentence were upheld. It is of note that as at the date of the decision on appeal, there had not been the decisions now relied upon on the unconstitutionality of indeterminate sentences. 3. The Applicant has now returned to this Court seeking a review of the sentence affirmed on appeal while invoking the subsequent developments in constitutional and sentencing jurisprudence have fundamentally altered the legal position governing indeterminate life imprisonment and that this Court is consequently entitled, in the exercise of its jurisdiction under Article 165(3)(b) of the Constitution, to determine whether the continued enforcement of that sentence accords with the Constitution. The Respondent, on the other hand, maintains that the application is nothing more than an impermissible attempt to reopen a concluded appeal. 4. It is trite that jurisdiction is conferred by the Constitution or statute and cannot be assumed by a court. Equally settled is the principle that where jurisdiction is challenged, the court must first satisfy itself that it is properly seized of the matter before embarking upon its determination. In doing so, the court must look beyond the form of the application and consider its true nature and substance. 5. In the present case, the Applicant does not challenge the correctness of the judgment dismissing his appeal, nor does he seek a rehearing of either his conviction or sentence in the appellate sense. Rather, he contends that subsequent decisions of the superior courts have altered the constitutional treatment of indeterminate life imprisonment and that the continued enforcement of the sentence imposed upon him is inconsistent with the Constitution. The application is therefore not presented as a continuation of the concluded appeal but as an invocation of this Court's constitutional jurisdiction to determine whether the sentence presently being served remains constitutionally compliant. The court appreciates the current application to seek the equal application of the law and entrenchment of stare decisis. The court holds that as the forte for the High Court 6. Whether that contention ultimately succeeds is a question that falls for determination on the merits. At this stage, the Court is concerned only with whether the Applicant has properly invoked its jurisdiction. The Court is satisfied that he has. 7. Accordingly, the Court finds that the present application is properly before it. The Respondent's preliminary objection is therefore not merited and is hereby overruled. **Whether the Applicant has established a basis for the review of the sentence of life imprisonment?** 1. Having found that the present application is properly before the Court, the next issue for determination is whether the Applicant has established a legal basis for interfering with the sentence of life imprisonment imposed upon him. 2. The Applicant's case is founded on the contention that subsequent developments in constitutional and sentencing jurisprudence have fundamentally altered the legal understanding of indeterminate life imprisonment. He argues that the sentence imposed upon him can no longer stand in light of the decisions of the Court of Appeal. The Respondent, on the other hand, maintains that life imprisonment remains the lawful sentence prescribed under section 8(2) of the Sexual Offences Act and that there is therefore no basis for interfering with the sentence. 3. The evolution of sentencing jurisprudence in Kenya may be traced to the decision of the Supreme Court in **Francis Karioko Muruatetu & Another v Republic [2017] eKLR**, where the Court declared the mandatory nature of the death sentence under section 204 of the Penal Code unconstitutional. The Supreme Court held that a sentencing regime which deprives a court of discretion to consider the circumstances of the offence and those of the offender is inconsistent with the Constitution, particularly the right to a fair trial and the right to dignity. 4. Subsequently, in **Francis Karioko Muruatetu & Another v Republic; Katiba Institute & 5 Others (Amicus Curiae) [2021] eKLR**, the Supreme Court clarified that its decision was confined to the mandatory death sentence for murder and did not automatically invalidate mandatory or minimum sentences prescribed under other statutes, including the Sexual Offences Act. Those directions remain binding upon this Court. 5. The Supreme Court's clarification, however, did not foreclose constitutional challenges to sentencing provisions contained in other statutes. Rather, it underscored that such challenges must be considered independently and within the context of the particular statutory provisions under consideration. It is against that backdrop that the Court of Appeal has since examined the constitutional implications of indeterminate life imprisonment under the Sexual Offences Act. 6. In **Julius Kitsao Manyeso v Republic [2023] KECA 827 (KLR),** the Court of Appeal considered the constitutionality of an indeterminate life sentence imposed under the Sexual Offences Act. While acknowledging the Supreme Court's directions in *Muruatetu*, the Court held that those directions did not preclude an independent constitutional examination of life imprisonment. The Court concluded that an indeterminate life sentence, which denies an offender any realistic prospect that rehabilitation may ultimately result in release, is inconsistent with the constitutional values of dignity, equality and proportionality and undermines rehabilitation as one of the recognized objectives of sentencing. 7. The Court of Appeal revisited the issue in **Ayako v Republic [2023] KECA 1563 (KLR),** where it undertook an extensive examination of comparative jurisprudence on life imprisonment. Having considered the constitutional principles underpinning sentencing and the prevailing socio-economic conditions in Kenya, the Court concluded that life imprisonment within the Kenyan legal framework should not be understood as imprisonment for the remainder of an offender's natural life. The Court expressed itself as follows; **"On our part, considering this comparative jurisprudence and the prevailing socio-economic conditions in Kenya, we come to the considered conclusion that life imprisonment in Kenya does not mean the natural life of the convict. Instead, we now hold, life imprisonment translates to thirty years' imprisonment."** 1. This Court is alive to the recent decision of the Supreme Court in **Republic v Joshua Gichuki Mwangi, SC Petition No. E018 of 2023**. That decision, however, arose in a materially different context. The questions before the Supreme Court were whether sentencing courts possess discretion to impose sentences below the mandatory minimum sentences prescribed under the Sexual Offences Act and, more specifically, whether the Court of Appeal was entitled to reduce the respondent's sentence from the statutory minimum of twenty (20) years' imprisonment to fifteen (15) years. 2. The present application raises an altogether different question. It does not concern the propriety of departing from a prescribed mandatory minimum sentence. Rather, it concerns the constitutional treatment and interpretation of an indeterminate sentence of life imprisonment. The Supreme Court neither considered nor determined that issue. Indeed, if life imprisonment were to be construed as translating into a fixed term of years, that fixed term would, in practical terms, become the operative mandatory minimum sentence for the offence. That question was therefore neither before the Supreme Court nor the subject of its determination. 3. Consequently, the decision in **R v Joshua Gichuki (supra)** does not affect the binding force of the Court of Appeal's decisions in **Julius Kitsao Manyeso v Republic** **(supra)** and **Ayako v Republic (supra)**, which directly addressed the constitutional implications and interpretation of indeterminate life imprisonment. As decisions of the Court of Appeal, they are binding upon this Court and represent the prevailing jurisprudence on the constitutional treatment and interpretation of indeterminate life imprisonment. This Court is therefore obliged to give effect to those decisions unless and until they are departed from by the Supreme Court. 4. The Respondent nevertheless urged the Court to decline the application on the ground that the Applicant's sentence had previously been affirmed on appeal. While the Court appreciates the importance of finality in litigation, the Applicant's appeal was determined on 8th March 2017, several years before the Court of Appeal rendered its decisions in **Julius Kitsao Manyeso v R** **(supra)** and **Ayako v R (supra)**. The constitutional principles articulated in those decisions were therefore unavailable to both the appellate court and the Applicant at the time the appeal was determined. In those circumstances, the present application is not a disguised appeal against the judgment delivered in 2017. Rather, it is an invitation to determine whether the sentence presently being served remains constitutionally compliant in light of the law as subsequently authoritatively declared by the Court of Appeal. 5. The Court has also considered the nature of the offence for which the Applicant was convicted. Defilement of a child aged eleven years or below is among the most serious offences created under the Sexual Offences Act. It violates the dignity, bodily integrity and wellbeing of the child and warrants severe punishment to denounce the conduct, protect vulnerable members of society and deter like-minded offenders. Nothing in this decision should therefore be understood as diminishing the gravity of the offence or the harm suffered by the victim. 6. At the same time, sentencing must remain faithful to constitutional values. As recognized in paragraph 1.3.1 of the Judiciary Sentencing Policy Guidelines, 2023, sentencing serves multiple objectives, including retribution, deterrence, rehabilitation, restorative justice, community protection, denunciation and accountability. The appropriate sentence must strike a proper balance between those objectives while remaining proportionate to both the offence and the offender. A sentence that permanently extinguishes any realistic prospect of release, regardless of an offender's rehabilitation, sits uneasily with those objectives and with the constitutional values identified by the Court of Appeal in **Julius Kitsao Manyeso v R (supra).** 7. Guided by the binding decisions of the Court of Appeal cited hereinbefore and having weighed the seriousness of the offence against the constitutional principles now governing sentencing, the Court is satisfied that the indeterminate sentence of life imprisonment imposed upon the Applicant cannot stand. In its place, the Court substitutes a determinate custodial sentence of thirty (30) years' imprisonment. **Whether the Applicant is entitled to the benefit of section 333(2) of the Criminal Procedure Code** 1. Having found that the sentence of life imprisonment ought to be substituted with a determinate custodial sentence of thirty (30) years' imprisonment, the Court must now determine whether the Applicant is entitled to the benefit of section 333(2) of the Criminal Procedure Code. 2. The Applicant contends that he remained in lawful custody from the date of his arrest until the conclusion of his trial and that the sentencing court did not take that period into account when imposing sentence. He consequently urges the Court to give effect to section 333(2) of the Criminal Procedure Code by directing that the substituted sentence be computed from the date he first entered lawful custody. The Respondent maintains that the issue ought to have been raised before the trial court or on appeal and cannot properly be revisited in these proceedings. 3. Section 333(2) of the Criminal Procedure Code provides: **"Subject to the provisions of section 38 of the Penal Code, every sentence shall be deemed to commence from and include the whole of the day of the date on which it was pronounced, except where otherwise provided in this Code:** **Provided that where the person sentenced under subsection (1) has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody."** 1. The proviso to section 333(2) is couched in mandatory terms. It imposes a statutory obligation upon every sentencing court to take into account the period an accused person spent in lawful custody before conviction and sentence. Its purpose is to ensure that an offender does not serve a longer period of imprisonment than that intended by law merely because of the time spent in pre-trial custody. 2. The mandatory nature of this provision was affirmed in **Ahamad Abolfathi Mohammed & Another v Republic [2018] eKLR**, where the Court of Appeal emphasized that it is not enough for a sentencing court merely to acknowledge that an accused person was in custody before sentence. The court must give practical effect to section 333(2) by ensuring that the sentence imposed reflects the period already spent in lawful custody. Failure to do so results in an offender serving a longer custodial term than the law contemplates. 3. Accordingly, where it becomes apparent that the period spent in custody was not taken into account, a court seized of the matter must give effect to section 333(2) of the Criminal Procedure Code to ensure that the sentence being served accords with the law. 4. The record before the Court shows that the Applicant was arrested on 26th October 2011. Although he was subsequently admitted to bond, there is no indication that any surety was ever approved. There is equally no evidence that a release order was ever issued. The record therefore supports the conclusion that the Applicant remained in custody throughout the trial until he was convicted and sentenced. 5. The sentencing proceedings equally do not disclose that the learned trial magistrate took into account the period the Applicant had spent in pre-trial custody. In the absence of any indication that section 333(2) was considered, this Court is satisfied that the Applicant is entitled to the benefit of that provision. 6. Accordingly, the substituted sentence of thirty (30) years' imprisonment shall be computed from 26th October 2011, being the date, the Applicant first entered lawful custody. The Officer in Charge of the prison in which the Applicant is currently held shall forthwith recalculate the Applicant's sentence in accordance with this ruling. 7. It is so ordered. Dated, signed and delivered at Lodwar this 31st day of July 2026 Patrick J O Otieno Judge