The High Court has struck down mandatory life imprisonment without the possibility of parole, declaring it unconstitutional.
The decision followed a petition by John Ndachu Nganga, who was convicted of defilement in 2014 and sentenced to life imprisonment under Section 8(2) of the Sexual Offences Act.
Nganga had exhausted his appellate remedies, with both the High Court and Court of Appeal dismissing his appeals.
He then approached the Constitutional and Human Rights Division, arguing that his life sentence was unconstitutional.
The petitioner contended that a life sentence is unconstitutional as it does not respect or protect the inherent dignity of a person.
Nganga also argued that a life sentence inflicts psychological torture on convicts.
He also argued that sentencing is a discretion of the court and as such the sentence of life imprisonment requires reconsideration as it is excessive, inappropriate and fails to adequately consider the mitigation factors and circumstances of the case.
The state did not file any written submissions in response to the petition.
Justice Abigail Mshila of the High Court in Kiambu allowed Nganga's petition and acknowledged that sentencing is a matter of judicial discretion.
“The record indicates that he was sentenced to life because that is the mandatory minimum sentence provided by the law,” Justice Mshila stated in her ruling.
“Life imprisonment should not mean the natural life of a convict. Such an indefinite sentence contravenes the right to human dignity and the right not to be subjected to inhuman and degrading treatment.”
The judge reviewed the life sentence and substituted it with a definite custodial sentence for a term of 35 years.
The sentence period is to be calculated from the date of conviction by the trial court on 12 March 2013, subject to confirmation.
Nganga had been found guilty of defiling a girl who had been sent by her mother to collect milk at his homestead.
Concerned by the child's delayed return, she went searching for her and discovered Nganga coming out of his son’s house alongside the girl.
After receiving an unsatisfactory explanation from him, she questioned her daughter, who disclosed that she had been sexually assaulted.
The matter was reported at the Githunguri police station.
Medical evidence supported the allegation after a clinical officer examined the child and later produced a P3 form in court as part of the prosecution's exhibits.
The petitioner was arrested, tried, found guilty and handed the life sentence.
