[2023] KEHC 19511 (KLR)

Ali v Republic (Miscellaneous Criminal Application E145 of 2022) [2023] KEHC 19511 (KLR) (22 June 2023) (Ruling)

Neutral citation: [2023] KEHC 19511 (KLR)

Republic of Kenya

In the High Court at Mombasa

Miscellaneous Criminal Application E145 of 2022

A. Ong’injo, J

June 22, 2023

Between

Hamisi Majimbo Ali

Applicant

and

Republic

Respondent

Ruling

1. The applicant Hamisi Majimbo Ali was charged in Mariakani Principal Magistrate’s Court Criminal Case No 111 of 2013 with the offence of defilement contrary to Section 8(1) as read with section 8(4) of the Sexual Offences Act No 3 of 2006, and an alternative charge of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act No 3 of 2006. The applicant was found guilty and sentenced on August 26, 2013 to serve 15 years imprisonment.

2. The application filed on July 7, 2022 seeks that the sentence be reviewed in consideration of the period spent in custody and his mitigating factors.

3. The applicant cited his mitigating factors to include rehabilitative programs and several theological courses that he has undertaken during his long stay in the penal institution, that the prison administration has granted him a favourable progressive report on his character, and that he is a first offender.

4. The applicant contended that the words ‘shall be liable to imprisonment of not less than 15 years’ under the penal provision of the relevant law is construed in mandatory terms which deprives him of his right to have his mitigation taken into consideration. That however, superior courts have clarified that the laws are not mandatory in nature and that what they imply is in fact discretionary upon the concerned magistrate to impose sentences that befit the offences committed.

5. The applicant cited the case of DWM v Republic [2016] eKLR, Opoya v Uganda [1967] EA 752 and Kichanjele s/o Ndamungu v Republic [1941] EA CA 64 where the concerned courts concurred that the words ‘shall be liable to’ do not in their ordinary meaning require the imposition of the stated penalty but, merely express the state penalty which may be imposed at the discretion of the court.

6. The applicant further cited the decision of the Court of Appeal at Malindi (Visram, Karanja & Koome JJA) in Swabir Bukhet Labhed v Republic CA Cr App No 52 of 2018 where it was held that it is common ground that where a sentence is couched under the prefix ‘shall be liable to’ the same connotes that the sentence prescribed herein is not a mandatory sentence rather it is the prescribed maximum sentence. Therefore, the sentencing court is clothed with discretion to determine the appropriate sentence of course, taking into account the surrounding circumstances of each case.

7. The applicant averred that courts have grappled with the issue of mandatory minimum penal provisions, the ultimate of them being the High Court in Machakos in Philip Mueke Maingi & 5 Others v Republic, Const Pet No E017 of 2021 where the superior court in the case held that all accused persons deserve to have their mitigation taken into account, and equally any court is bestowed with the legitimate discretion to impose sentences that befit the offences committed.

8. The applicant cited Section 333(2) of the Criminal Procedure Code which provides that subject to the provision of Section 38 of the Penal code, every sentence shall be deemed to commence from and to include the whole of the day, the date on which it was pronounced, except where otherwise provided in this code. Provided that where a person sentenced under sub-section (1) has prior to such sentence, been held in custody, the sentence shall take into account of the period spent in custody.

9. Upon conviction of the applicant, the prosecution said that he was a first offender and that there was no record. The applicant was given an opportunity to mitigate but the trial magistrate said that there was a minimum sentence for the offence in question and went ahead to sentence the applicant to 15 years imprisonment for the offence in question as per the law. The trial court did not therefore exercise discretion in sentencing the applicant on account of the mandatory sentence in the Sexual Offence Act.

10. In consideration of the principle in Francis Muruatetu and Others v Republic and the holding in Philip Mueke Maingi & 5 Others v Republic, Const Pet No E017 of 2021, this court finds that the applicant’s constitutional right was infringed when the trial court failed to consider his mitigation before sentencing on account of the mandatory minimum sentence of 15 years.

11. In Christopher Ochieng v R [2018] eKLR the Court of Appeal at Kisumu took guidance from the Landmark Supreme Court decision in Francis Karioko Muruatetu & another v Republic SC Pet No 16 of 2015 and held: -'In this case the appellant was sentenced to life imprisonment on the basis of the mandatory sentence stipulated by Section 8 (1) of the Sexual Offences Act, and if the reasoning in the Supreme Court case was applied to this provision, it too should be considered unconstitutional on the same basis.'

12. In Philip Mueke Maingi & 5 others v Director of Public Prosecutions & another (Petition E017 of 2021) [2022] KEHC 13118 (KLR) (17 May 2022) (Judgment), Odunga, J (as he then was) held: -To the extent that the Sexual Offences Act prescribed mandatory minimum sentences, with no discretion to the trial court to determine the appropriate sentence to impose, such sentences fell afoul of article 28 of theConstitution. However, the court was at liberty to impose sentences prescribed thereunder so long as the same were not deemed to be the mandatory minimum prescribed sentences.

13. In consideration of the authorities cited above and in consideration that the 16-year-old complainant in her evidence stated that she was in a consensual relationship with the applicant and was only discovered due to the pregnancy, this court finds that circumstances of the case herein called for a more lenient sentence. The applicant is a young man with a whole life ahead of him. He has also undergone rehabilitative programs for the period of 10 years that he has been in custody and it is inexpedient to inflict more punishment than what has already been served. In giving him a second chance to be a better person in society, this court therefore sets him at liberty unless otherwise lawfully held.

DATED, SIGNED AND DELIVERED IN OPEN COURT/ONLINE THROUGH MS TEAMS, THIS 22ND DAY OF JUNE 2023HON. LADY JUSTICE A. ONG’INJOJUDGEIn the presence of: -Ogwel- Court AssistantMr. Ngiri for RespondentApplicant present in personHON. LADY JUSTICE A. ONG’INJOJUDGE