[2020] KEHC 4927 (KLR)
The court held that following the Supreme Court decision in Francis Karioko Muruatetu v Republic, the mandatory life sentence for defilement is unconstitutional as it removes judicial discretion and disregards mitigation. The applicant, having served 11 years and demonstrated significant reformation and acquisition...
Source-derived case information.
- Citation
- [2020] KEHC 4927 (KLR)
- Parties
- Applicant: Abraham Kadenyi Alusa; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 63 of 2019
- Procedural Posture
- Miscellaneous Application / Resentencing Application
- Outcome
- sentence_varied
- Judges
- RB Ngetich
- Legal Topics
- Defilement, Sentencing Discretion, Mandatory Sentences, Mitigation Factors
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Abraham Kadenyi Alusa
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Application / Resentencing Application
Legal Issues
- 1 Whether the mandatory life sentence for defilement under Section 8(1) of the Penal Code is unconstitutional following the Supreme Court decision in Francis Karioko Muruatetu v Republic.
- 2 Whether the applicant is entitled to a reduction of sentence based on mitigation and reformation.
Ratio Decidendi
The court held that following the Supreme Court decision in Francis Karioko Muruatetu v Republic, the mandatory life sentence for defilement is unconstitutional as it removes judicial discretion and disregards mitigation. The applicant, having served 11 years and demonstrated significant reformation and acquisition of skills, deserved a reduction in sentence. The court considered the seriousness of the offence, the age of the complainant, and the applicant's mitigation, and found that a sentence of 20 years' imprisonment was appropriate and proportionate in the circumstances.
Court Disposition
sentence_varied
Orders
- Sentence is reduced to 20 years’ imprisonment.
- The sentence to run from the time the applicant was sentenced in the lower court.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
MISC.APPL NO.63 OF 2019
ABRAHAM KADENYI ALUSA................APPLICANT
-VERSUS-
REPUBLIC...............................................RESPONDENT
RULING
1. This is a ruling on application for resentencing. The applicant had been charged and convicted of the offence of defilement contrary to Section 8 (1) of the Penal Code. He was sentenced to life imprisonment. He has exhausted his right of appeal by filing appeal in both the High Court and Court of Appeal.
2. The applicant relied on the case of Francis Karioko Muruatetu Vs Republic [2017] eKLR to argue that the mandatory life sentence imposed by the trial Court and upheld by the High Court is excessive and harsh and sought an appropriate sentence.
3. The applicant orally submitted that he has served sentence for 11 years now and has had opportunity to train as Carpenter Grade 1, II and III; and he is also Chaplain SDA and Adventist Chaplain and has obtained Certificate of Discipleship and Voice of Prophecy. He prayed that he be given an opportunity to go back to the community.
ANALYSIS AND DETERMINATION
4. The applicant herein was sentenced to life imprisonment before the Supreme Court’s decision in Francis Karioko Muruatetu Vs Republic [2017] eKLR. The Supreme Court declared unconstitutional the mandatory nature of sentence imposed as it takes away the discretion of the trial Court to determine sentence to impose depending on circumstances and mitigation factors advanced in a particular case. The Supreme Court found that the taking away of discretion of the Court renders the mitigating factors superfluous.
5. Whereas I agree that sentences under Sexual Offences Act are serious especially where the complainant is a minor, the Court has to look at circumstances of each case; consider age of minor and mitigation of the accused person.
6. I note from the charge that the applicant was charged with defilement of a girl under 10 years. The life sentence was intended to serve to deter the would-be offender from defiling minors. I note that the applicant has served a period of 11 years. He took imprisonment positively and learnt skills to improve himself for his benefit, family and community. This is evidence of resolve to reform and be of benefit to the society.
7. In view of the above, I find that the applicant deserves reduction of sentence. I therefore reduce the applicant’s sentence to 20 years’ imprisonment.
8. FINAL ORDERS
1. Sentence is reduced to 20 years’ imprisonment.
2. The sentence to run from the time the applicant was sentenced in the lower court.
Ruling dated, signed and delivered via zoom at Nakuru
This 16th day of May, 2020
RACHEL NGETICH
JUDGE
In the presence of:
Schola - Court Assistant
Applicant in person present
Rita for State