[2020] KEHC 8145 (KLR)
The court held that the mandatory life sentence imposed under Section 8(1) of the Sexual Offences Act, without consideration of mitigation, was unconstitutional in light of the Supreme Court decision in Muruatetu and subsequent superior court decisions. The applicant was entitled to have his sentence set aside and...
Source-derived case information.
- Citation
- [2020] KEHC 8145 (KLR)
- Parties
- Applicant: Abdullahi Sheikh Hussein; Respondent: Director of Public Prosecutions (D.P.P.)
- Court
- High Court
- Court Station
- High Court at Garissa
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 61 of 2019
- Procedural Posture
- Miscellaneous Application / Ruling on Re Sentencing Application
- Outcome
- Application allowed. Original sentence set aside. Matter remitted for re-sentencing.
- Judges
- CM Kariuki
- Legal Topics
- Defilement Offence, Mandatory Sentencing, Mitigation of Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Abdullahi Sheikh Hussein
Applicant
Director of Public Prosecutions (D.P.P.)
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Re Sentencing Application
Legal Issues
- 1 Whether the mandatory life sentence for defilement under Section 8(1) of the Sexual Offences Act is unconstitutional for failing to consider mitigation.
- 2 Whether the applicant is entitled to re-sentencing in light of the Supreme Court decision in Muruatetu.
Ratio Decidendi
The court held that the mandatory life sentence imposed under Section 8(1) of the Sexual Offences Act, without consideration of mitigation, was unconstitutional in light of the Supreme Court decision in Muruatetu and subsequent superior court decisions. The applicant was entitled to have his sentence set aside and the matter remitted to the trial court for re-sentencing after mitigation is considered.
Court Disposition
Application allowed. Original sentence set aside. Matter remitted for re-sentencing.
Orders
- Criminal Case No. 1065/2010 Garissa Chief Magistrate’s Court sentence is set aside.
- The matter is referred back to the Chief Magistrate Court Garissa for sentencing after considering mitigations.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT GARISSA
MISC. CRIMINAL APPLICATION NO. 61 OF 2019
ABDULLAHI SHEIKH HUSSEIN......................................................APPLICANT
VERSUS
D.P.P...................................................................................................RESPONDENT
RULING
1. The applicant was convicted in Principal Magistrate’s Criminal Case No. 1065/2010 in Garissa for offence of defilement under Section 8 (1) Sexual Offences Act. He denied the charge. He was found guilty and was sentenced to serve life imprisonment.
2. He lodged High Court Criminal Appeal No. 330 of 2010 at Garissa which dismissed the appeal after hearing the same. He proceeded to Court of Appeal in Criminal Appeal No. 36 of 2015. The same appeal was dismissed.
3. He has now moved this case on the re-sentencing as a result of the sentence of life imprisonment awarded without mitigation being considered as it was mandatory sentence for the offence charged.
4. He relies on Supreme Court Case of Muruatetu in 2017 eKLR which together with subsequent superior court decisions have declared the mandatory nature or aspect of a sentence as unconstitutional.
5. The prosecution does not oppose the application. Thus the court makes the following orders;
(i) Criminal Case No. 1065/2010 Garissa Chief Magistrate’s Court is set aside.
(ii) The matter is referred back to the Chief Magistrate Court Garissa for sentencing after considering mitigations.
DATED, DELIVERED AND SIGNED AT GARISSA THIS 18TH DAY OF FEBRUARY, 2020.
……………….………………
C. KARIUKI
JUDGE