[2020] KEHC 8754 (KLR)
The court found that the mandatory life sentence imposed on the applicant for the offence of defilement was unconstitutional in light of the Supreme Court's decision in Muruatetu, which declared mandatory sentences to be contrary to the Constitution. The court held that it was empowered to review and set aside the...
Source-derived case information.
- Citation
- [2020] KEHC 8754 (KLR)
- Parties
- Applicant: Abdikadir Issack Mohammed; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Garissa
- Jurisdiction
- Kenya
- Case Number
- Criminal Miscellaneous Application 75 of 2019
- Procedural Posture
- Criminal Miscellaneous Application / Ruling
- Outcome
- application allowed; sentence reviewed and reduced
- Judges
- CM Kariuki
- Legal Topics
- Sentencing Principles, Mandatory Sentences, Sexual Offences, Defilement, Constitutional Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Abdikadir Issack Mohammed
Applicant
Republic
Respondent
Procedural Posture
Criminal Miscellaneous Application / Ruling
Legal Issues
- 1 Whether the mandatory life sentence for defilement under section 8(2) of the Sexual Offences Act is constitutional in light of the Supreme Court decision in Muruatetu.
- 2 Whether the applicant's sentence should be reviewed and substituted in accordance with current constitutional standards.
Ratio Decidendi
The court found that the mandatory life sentence imposed on the applicant for the offence of defilement was unconstitutional in light of the Supreme Court's decision in Muruatetu, which declared mandatory sentences to be contrary to the Constitution. The court held that it was empowered to review and set aside the sentence, exercising its discretion to impose a sentence that is just and proportionate. Consequently, the court set aside both the original sentence of 100 years and the substituted life sentence, and resentenced the applicant to 15 years' imprisonment, to run from the date of the original sentence imposed by the trial court.
Court Disposition
application allowed; sentence reviewed and reduced
Orders
- The sentence in CRC No. 148/2011 Wajir and subsequent substitution to life imprisonment is set aside.
- The applicant shall serve 15 years’ imprisonment to run from 21/4/2011 when he was sentenced by the trial court.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT GARISSA
CRIMINAL MISC. APPLICATION NO. 75 OF 2019
ABDIKADIR ISSACK MOHAMMED.....APPLICANT
VERSUS
REPUBLIC..............................................RESPONDENT
RULING
1. The applicant was convicted and sentenced to serve 100 years for offence of defilement contrary to section 8(2) of the Sexual Offences Act No. 3 of 2006 for allegedly defiling a girl aged 6 years.
2. He appealed in HCCR No. 116 of 2012 High Court at Garissa. In its judgement the trial court held that the only sentence provided was life imprisonment under the law. That implied that life sentence was mandatory sentence. This was on 3/12/2013.
3. In December 2017 the Supreme Court vide Petition No. 15 of 2015 – Muruatetu case and subsequent supervisor court decisions, have held mandatory aspect of sentence is unconstitutional thus the substitution of 100 years to life sentence was unconstitutional and this court is mandated to interfere with the same sentence.
4. Thus this court as prosecution does not oppose application do make the following orders:
i. The sentence in CRC No. 148/2011 Wajir and subsequent substitution to life imprisonment is set aside.
ii. The applicant shall serve 15 years’ imprisonment to run from 21/4/2011 when he was sentenced by the trial court.
DATED, DELIVERED AND SIGNED AT GARISSA THIS 6TH DAY OF FEBRUARY, 2020.
……………….………………
C. KARIUKI
JUDGE