Rethinking life imprisonment in light of Justus Ndung’u v. Republic and Julius Kitsao Manyeso v. Republic


 On 19th March 2024, the High Court of Kenya sitting at Murang’a decided to put an end to the prolonged debate on the relevance or otherwise of life imprisonment in Kenya. Even before the ink could dry on the well-crafted judgment by none other than Justice Prof (Dr) Nixon Sifuna, this paper argues that the holding of the Court could not have come at a better time. The call for abolishment of life imprisonment

in Kenya has been gaining momentum and this paper would like to add its voice to that noble course. Equally, this paper argues that in addition to the court’s judgment, life imprisonment ought to have been abolished long ago for reasons, some of which are explained herein.

The term life imprisonment signifies no life at all. In other words, it is equivalent to punishing someone for the rest of their lives for an act or omission that they once did. It is equivalent to saying that a person has no chance at all for making up for

the very mistake that they committed. The escape route for life imprisonment is death. That begs the question whether life imprisonment is significantly better

Justice Prof. Nixon Sifuna
Justice Prof. Nixon Sifuna

than death sentence to begin with. It is equivalent to having hell on earth and hoping against hope that one day the day you shall be miraculously freed from life in prison. Life imprisonment violates very many essential rights and fundamental freedoms that were recognised by Kenya’s

Court of Appeal as well as the High Court.1,2 Against this backdrop, legislators should be ready to entertain calls for abolishment of life imprisonment.



 Life imprisonment is not expressly defined in Kenyan law. Assumptions therefore have to be made in so far as its definition is concerned. However, the generally accepted meaning of life imprisonment in Kenya’s prison system is until death with little chance of early release.3 The sentence of life without parole requires that the person will never be eligible for release.4 It means that short of a pardon, commutation or other form of leniency, they are sentenced to die in prison.5 The continued existence of life imprisonment has been challenged because it poses serious threats to various fundamental rights and freedoms as will be discussed herein.

We are thus left with no option but to borrow the common law definition of life imprisonment. In R v Home Secretary, Ex parte Doody, 1994: 549H–550B Lord Mustil while speaking on the ambiguity of life imprisonment stated that:

“The sentence of life imprisonment is also unique in that the words, which the judge is required to pronounce, do not mean what they say. Whilst in a very small minority of cases the prisoner is in the event confined for the rest of his natural life, this is not the usual or intended effect of a sentence of life imprisonment, …

But although everyone knows what the words do not mean, nobody knows what they do mean, since the duration of the prisoner’s detention depends on a series of recommendations … and executive decisions ….”. 6

 Violation of human rights

 Everyone has inherent human dignity that they possess by dint of being human. To that extent therefore, each and every one Essential things such as food and water are a luxury in prisons.10 At the same time, Kenyan prisons are overcrowded and the government has always been working on ways in which it can decongest the prisons.11 The solution, however, lies from within. Life imprisonment being an unnecessary burden should be completely scrapped off from our laws. With that done and with each and every one servicing predictable sentences, the issue of overcrowding and congestion in prisons will be partially and practically solved. We need not to forget that each and every person has the right to freedom of movement. This essential right, however, can hardly be exercised in prisons. To put it into context, prisons are often small and the right to movement cannot be efficiently exercised in an enclosed setup and within the confines of the walls of the prison.

Life imprisonment runs against the goal of having less crowded prisons. In addition, it denies those whose lives have been condemned to life imprisonment an opportunity to make significant improvements to their lives. This is in conflict with the thought propounded by Justice VR Krisna Iyer which is “If every saint has a past, every sinner has a future, and it is the role of law to remind both of this”.12 That goes without saying that not only does the state lose the revenue that it could have collected but it has to spend much more to sustain the lifestyle of those who are serving life imprisonment. The society at large also loses from the productive services that would have been offered by these very same people who are spending their lives behind bars. The situation is worse especially if a relatively young person like a youth or a teenager is subjected to such a punishment.

Health is wealth and nobody can deny that.13 As a matter of fact, we are always advised to take good care of our bodies so that it can reward us with good health. Right to health is recognised by both national and international law. Maybe this much recognition is based on the fact that health is such a priceless thing that cannot be bought. Having good health in prisons is almost an illusion.14 The living conditions in prison make it quite difficult to take good care of anyone’s health in such an environment. The bad health in prison may be attributed to infectious and opportunistic diseases that are not sufficiently addressed by prison officials. It is much worse if someone is serving a life imprisonment since people care the least about their health. In any case someone falls ill in the prison, they are not always availed the highest attainable standards of health against the express requirements of Article 43(1)(a) of the Constitution of Kenya, 2010. The medical treatment that these prisoners are subjected to is not only pathetic but also distressing.

Prisoners neither have reasonable meals nor any treatment.15 It seems that the condition of prisons also form part of the punishment. The sleeping conditions are depressing while at the same time sanitation in prisons is wanting due to poor condition of toilets if any.16 As a matter of fact most prisons lack basic requirements such as toilets and water. These non-negotiable elements can only be missed for a short period of time. Even during that short period, the right to inherent dignity is often greatly interfered with. It is much worse that someone has to tolerate such degrading treatment due to condemnation to a lifelong imprisonment.

Improving and upgrading the prisons is a shortcut to granting people what they actually deserve which is their freedom after serving a reasonable prison term. Economic rights require that people should be given an opportunity to earn a living. This can only happen if they are allowed to offer their services to the general public. It beats logic that the government is intentional about raising revenue allocation yet it has sentenced the very same people that could have made it much easier for it to get much more revenue. The situation is worsened if these people have to stay in prison for the rest of their lives. The issue is compounded if the life imprisoned person was the sole breadwinner of his or her family. Life definitely changes negatively for the affected family. The good life that they were once used to becomes just a ghost of their past.

One of the most fundamental aspects of the law is the promise that each and every one is equal before the law. Equality before the law means that everyone will always be subjected to the same treatment regardless of their social, economic or political standards. The law is therefore framed in such a manner that no form of discrimination can be tolerated. Article 27 of the Constitution of Kenya, 2010 provides



that every person is equal before the law and has the right to equal protection and equal benefit of the law. The same article goes ahead and provides that there is no room for discrimination in Kenya.17 However, those who are subjected to life imprisonment are discriminated as opposed to those who are imprisoned for a shorter time. This is based on the fact that life term imprisonment contravenes the freedom and liberty of the individual and treats him unequally among the equals.

Judicial discretion

 The court should therefore keep in mind that no two cases will ever be alike. Facts of the cases may be similar but they can never be identically the same. With that in mind, judges should be granted the discretion to judge cases based on the facts in question. At the same time, the circumstances surrounding the cases cannot just be wished away. Judges and magistrates act as independent umpires who ought to marry the law and facts. A strict following of the law may at times result to a miscarriage of justice. This is not what the lawmakers had in their minds when they came up with life imprisonment. The Court of Appeal held in the case of Julius Kitsao Manyeso v Republic that individual cases calls for individual circumstances and mitigation and that infliction of punishment was a matter of the discretion of the trial court.

Judicial discretion is the cornerstone on which independent judgments are made. Laws, rules, regulations and guidelines act as pointers upon which judges ought to base their judgment. However, they do not in any way replace the need for judges

and magistrates to use their independence in deciding cases. Having offences that require life imprisonment as a mandatory sentence fails to appreciate the good work that judges do in moving the wheel of justice.18 Legislatures are meant to make laws. They cannot, however, micromanage the manner in which judges ought to apply the said laws that they have already made. The role of interpretation of laws solely lies in the hands of judges of course with little assistance from Advocates. Judges consider mitigating circumstances in coming up with their judgments. To that extent therefore, mandatory life imprisonment ignores the fact that in as much as the offence may be the same, the circumstances surrounding the commission or omission of the crime may differ.

Kenya’s 2010 Constitution which has been praised as one of the most progressive Constitution in the Africa region should be construed in such a manner that it advances the rule of law.19 Concurrently, the Constitution is the supreme law in Kenya and any law in consistent with it should be void to the extent of its inconsistency.20 Therefore, the various sections of the Penal Code that recommend life imprisonment should be scrapped off for the very reason that they violate rights and freedoms guaranteed by the Constitution itself. That will send a strong message in the international arena that we are more than serious about respecting, protecting and promoting human rights and fundamental freedoms.


Failure of the deterrence theory

One of the noticeable goals of imprisonment is deterrence. In simple terms, law makers as well as judges assume that subjecting a person to imprisonment does not only discourage them from committing the same crime but it also discourages other people from committing a similar crime. It is said that those who are sent to prisons act as an example that everybody else should avoid. At the same time, it is argued that the stricter the penalty given the more the message will sink in the minds of those who would have committed the same crime. It sends a message and a signal to the larger community that the state is not interested in tolerating such a crime. It is very clear that each and every one would like to avoid spending the rest of the lives in a prison. To that extent therefore, an argument can be wrongfully put that life imprisonment acts to deter people from being in conflict with the law.

Nothing is further from the truth than the assumption that life imprisonment achieves its aim and goal of promoting deterrence.21 As a matter of fact, statistics have it that there has been a steady rise in the number of people who are serving life imprisonment.22 At the same time the rates at which crimes which are punished by life imprisonment has been increasing overtime. Against this backdrop, the argument that we need to uphold life imprisonment merely because it serves as a lesson to the offender as well as the community cannot hold water same way a sieve cannot.

The law makers need to innovate new smart ways of achieving deterrence since subjecting people to harsh punishments such as life imprisonment have proved to be elusive.

The role of prisons in reforming offenders

 One of the goals of a prison sentence is to accord the offender an opportunity to change their ways. A prisoner will therefore train and acquire new skills that will be instrumental for them to re-integrate with the community. As argued above, a person subjected to life imprisonment has no motivation to turn a new leaf. They know way too well that the rest of their lives will be spent behind bars and that their fates have been sealed. They therefore spend more time and energy in developing copying mechanisms that often prove fruitful in their attempt to survive the harsh living conditions in prisons. This is due to the insufficient reformative schemes, overcrowded prisons, and lack of proper training to the prison authority staff members. This defeats the goal of prisons in reforming, rehabilitating and teaching prisoners’ values and virtues that would have otherwise proved to be fruitful to the community.


 The Court of Appeal as well as the High Court issued very strong statement in so far as life imprisonment is concerned.This perfect work cannot just be ignored. Our legislators should ensure that life imprisonment is removed from our written laws moving forward. This will go a long way in ensuring that the rights and fundamental freedoms that have been discussed herein are not only promoted but also respected and protected. With that in mind, we hope that our legislators will heed to this humble plea and assist those who have been subjected to life imprisonment to regain their dignity and to reintegrate with the general public.



Michael has an unbeatable interest in research and is a keen and enthusiastic follower of emerging jurisprudence. He can be reached at