[2021] KEHC 8263 (KLR)
The court found that the petition was an abuse of process because the petitioner had already appealed his conviction and sentence, resulting in a reduction from 23 to 20 years by the High Court, which exercised its discretion in line with the Supreme Court's guidance in Muruatetu. There was no further basis for...
Source-derived case information.
- Citation
- [2021] KEHC 8263 (KLR)
- Parties
- Appellant: Amos Mwangangi Muthiani; Respondent: Director of Public Prosecution
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Petition 216 of 2019
- Procedural Posture
- Resentencing Application / Judgment
- Outcome
- petition dismissed
- Judges
- DO Ogembo
- Legal Topics
- Defilement, Mandatory Sentencing, Resentencing, Sexual Offences Act, Judicial Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Amos Mwangangi Muthiani
Appellant
Director of Public Prosecution
Respondent
Procedural Posture
Resentencing Application / Judgment
Legal Issues
- 1 Whether the mandatory minimum sentence under Section 8(3) of the Sexual Offences Act is unconstitutional in light of the Supreme Court decision in Muruatetu.
- 2 Whether the petitioner is entitled to further reduction of sentence after the High Court already exercised discretion and reduced the sentence from 23 to 20 years.
Ratio Decidendi
The court found that the petition was an abuse of process because the petitioner had already appealed his conviction and sentence, resulting in a reduction from 23 to 20 years by the High Court, which exercised its discretion in line with the Supreme Court's guidance in Muruatetu. There was no further basis for review, as the court had already considered the constitutionality of the mandatory minimum sentence and applied discretion. The petition for further resentencing was therefore dismissed.
Court Disposition
petition dismissed
Orders
- The petition for resentencing is dismissed as an abuse of the court process.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
PETITION NO. 216 OF 2019
AMOS MWANGANGI MUTHIANI............................................................PETITIONER
VERSUS
DIRECTOR OF PUBLIC PROSECUTION..............................................RESPONDENT
JUDGMENT ON RESENTENCING
1. The Petitioner was convicted for the offence of defilement contrary to Section 8 (1) as read with Section 8(3) of the Sexual Offences Act No. 3 of 2006, in Kwale CMC Sexual Offence Case No. 77 of 2016. He was sentenced to 23 years’ imprisonment. Aggrieved by his conviction and sentence, the Petitioner moved the High Court vide Criminal Appeal No. 125 of 2018. Although the Petitioner’s conviction was upheld, his sentence was found to be excessive and the High Court reduced the sentence to a term of 20 years’ imprisonment.
2. The Petitioner has now petitioned this Court for review of sentence in view of the Supreme Court declaration in Francis Kariokor Muruatetu & Another v Republic SCK Pet. No. 15 of 2015 [2017] eKLR, thatmandatory nature of any sentence is unconstitutional.
3. The Petitioner submitted the sentence of 20 years’ imprisonment is excessive and disproportionate to the offence.
4. In mitigation, the Petitioner submitted that he was a first offender, and currently, he is the sole breadwinner for his family. He further submitted that while serving his sentence, he has undertaken several theological courses.
5. His Prison’s Progress Report indicates that he is of good conduct, he is a changed person, he is a devoted Christian, and he can be a resourceful person to the society.
6. Section 8(3) of the Sexual Offences Act provides:
“A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.”
7. In Yusuf Shiunzi v Director of Public Prosecution [2020] eKLR, it was stated: “It is not disputed that the opinion of the Supreme Court with respect to mandatory sentences applies with equal force to minimum sentences.” This is also supported by the Kenya Judiciary Sentencing Policy Guidelines where it is appreciated that:
“Whereas mandatory and minimum sentences reduce sentencing disparities, they however fetter the discretion of Courts, sometimes resulting in grave injustice particularly for juvenile offenders.”
8. I have considered this petition especially in the light of the aforesaid Muruatetu case. I am of the view that this petition is an abuse of the Court process. The Petitioner appealed the trial court conviction and sentence, which was 23 years. The High Court on 14/11/2019 considered his Appeal on sentence, and while exercising its discretion, reduced his sentence to 20 years imprisonment. There is now nothing that this Court can do. The Petitioner had already been resentenced to serve a term of 20 years. This petition is an abuse of the Court process. It is hereby dismissed.
DATED, SIGNED AND DELIVERED AT MOMBASA THIS 22ND DAY MARCH, OF 2021.
E. K. O. OGOLA
JUDGE
Judgment delivered via MS Teams in the presence of:
Petitioner in person
Ms. Anyumba for DPP
Peris Court Assistant