Judge Nixon Sifuna rules life sentence is archaic, absurd and unconstitutional

In the landmark ruling, the judge opined that 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 ruling follows an appeal filed by Justus Ndung’u Ndung’u who was found guilty of incest contrary to section 20 (1) of the Sexual Offences Act by a Kigumo Senior Resident Magistrate.

Ndung’u is believed to have defiled his 10-year-old daughter on 18th May 2017 at Wemba Location in Murang’a County, and was consequently sentenced to life imprisonment. 

While delivering the judgment, Justice Sifuna argued that life sentence is deceptive and is related to death sentence. He described it as an indefinite and unquantifiable sentence that denies the prisoner any hope of eventual release. 

“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 High Court held that the trial court properly convicted Ndung’u on the incest charges. However, his sentence was reduced to 10 years in prison.  

“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 imprisonment, effective from 21st July 2022,” reads the judgement. 

Sifuna’s judgment 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.

“While the death sentence is retained in statute books, in reality, and for all practical purposes, it no longer exists. However, it is not for us to delete it from the statute books. What is however clear is that in terms of execution, there is no distinction between a death sentence and a life sentence,” they said.