[2022] KEHC 11026 (KLR)
The court held that it lacked discretion to revise the applicant's sentence below the mandatory minimum prescribed by section 11(1) of the Sexual Offences Act. The Supreme Court in the Muruatetu decision clarified that the mandatory minimum sentences for offences other than murder remain valid unless their...
Source-derived case information.
- Citation
- [2022] KEHC 11026 (KLR)
- Parties
- Applicant: Meshack Anekeya; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision E031 of 2022
- Procedural Posture
- Criminal Revision / Ruling on Application for Revision of Sentence
- Outcome
- application dismissed
- Judges
- JM Bwonwong'a
- Legal Topics
- Sentencing Principles, Sexual Offences, Mandatory Minimum Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Meshack Anekeya
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Application for Revision of Sentence
Legal Issues
- 1 Whether the court has discretion to revise the applicant's sentence for indecent assault under section 11(1) of the Sexual Offences Act.
- 2 Whether the applicant's mitigation and personal circumstances justify a non-custodial sentence.
Ratio Decidendi
The court held that it lacked discretion to revise the applicant's sentence below the mandatory minimum prescribed by section 11(1) of the Sexual Offences Act. The Supreme Court in the Muruatetu decision clarified that the mandatory minimum sentences for offences other than murder remain valid unless their constitutionality is specifically challenged and determined. The applicant's mitigation, personal circumstances, and claims of rehabilitation could not justify a non-custodial sentence in the absence of a successful constitutional challenge to the mandatory minimum sentence. Consequently, the application for revision was dismissed in its entirety.
Court Disposition
application dismissed
Orders
- The application for revision of sentence is dismissed in its entirety.
Full Case Text
Judgment text and source record
24 paragraphs
Anekeya v Republic (Criminal Revision E031 of 2022) [2022] KEHC 11026 (KLR) (Crim) (23 May 2022) (Ruling)
Neutral citation: [2022] KEHC 11026 (KLR)
Republic of Kenya
In the High Court at Nairobi (Milimani Law Courts)
Criminal
Criminal Revision E031 of 2022
JM Bwonwong'a, J
May 23, 2022
Between
Meshack Anekeya
Applicant
and
Republic
Respondent
(Being revision from the order of Hon. Ong’injo, CM, dated 24/06/2021 in Kibera Chief Magistrate’s Court in Criminal Case No. 55 of 2015 Republic v Meshack Anekeya)
Ruling
1. The applicant under certificate of urgency has applied for revision of his sentence of four years imprisonment in respect of indecent assault contrary to section 11 (1) of the Sexual Offences Act No. 3 of 2006.
2. In his supporting affidavit the applicant has majorly deposed as follows. He was a first offender. He has also deposed that his mitigation was not considered. He has further deposed that he is 30 years old and that he has been in custody for 8 months.
3. Furthermore, the applicant has deposed that he has reformed and rehabilitated while in prison and has urged the court to impose upon him a non-custodial sentence.
4. Finally, the applicant has deposed that his wife possesses little formal education and has no skills to sustain the daily needs of his entire family.
5. I declined to hear counsel for the respondent as this was a simple matter for revision.
6. I have considered the affidavit of the applicant. I find that in these class of offences the Supreme Court in Francis Karioko Muruatetu & another v. Republic; Katiba Institute & 5 others (Amicus Curiae) [2021] e-KLR, ruled that the court has no discretion to impose any sentence. In other words, it has to impose the mandatory minimum prescribed sentence. In that regard that court pronounced itself as follows:“(15)To clear the confusion that exists with regard to the mandatory death sentence in offences other than murder, we direct in respect of other capital offences such as treason under section 40 (3), robbery with violence under section 296 (2), and attempted robbery with violence under section 297 (2) of the Penal Code, that a challenge on the constitutional validity of the mandatory death penalty in such cases should be properly filed, presented, and fully argued before the High Court and escalated to the Court of Appeal, if necessary, at which a similar outcome as that in this case may be reached. Muruatetu as it now stands cannot directly be applicable to those cases.”
7. In the premises, the application fails and is hereby dismissed in its entirety.
JUDGEMENT DATED, SIGNED AND DELIVERED IN OPEN COURT AT NAIROBI THROUGH VIDE VIDEO CONFERENCE THIS 23RD DAY OF MAY 2022. J M BWONWONG’AJUDGEIn the presence of: -Mr. Kinyua court assistantThe appellant in personMs Oduor for the Respondent