[2022] KEHC 1771 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAROK

MISC. CRIMINAL APPLICATION NO. E014 OF 2021

(CORAM: F.M. GIKONYO J.)

(From the sentence in Narok CMCR No. 141 of 2017 and HCCRA NO. 54 of 2017)

BARAGOI ROTIKEN...................APPLICANT

-VERSUS-

REPUBLIC................................RESPONDENT

JUDGMENT

Muruatetu; the great flood

[1]. The application before me seeks resentencing pursuant to the decision of the Supreme Court in Francis Karioko Muruatetu & Another v Republic [2017] eKLR.

[2]. The applicant had been charged with the offence of defilement contrary to Section8(1) as read with Section 8(2) of the Sexual Offences Act No. 3 of 2006. He was found guilty and sentenced to life imprisonment.

[3]. He then filed an appeal at Narok High Court vide Criminal Appeal No. 54 of 2017 which was heard and the outcome was that the conviction and sentence was upheld.

[4]. This matter was canvassed by way of written submissions.

[5]. The applicant submitted that this court has unlimited jurisdiction to hear and determine any matter before it. He relied in the Owners of Motor Vessel Lilian ‘S’ Vs Caltex Oil (Kenya) Ltd [1989] KLR1 at page 14, Article 23 (1) and 165 (3) (b) of the Constitution.

[6]. The applicant submitted that the imposition of the mandatory life sentence under Section 8(2) of SOA does not permit the court to consider the peculiar circumstances of each case in order to arrive at an appropriate sentence informed by those circumstances. He cited Criminal Appeal No. 262 Of 2012- Hamisi Mwangeka Mwero Vs Republic and sentencing policy guidelines under Section 23. 9, S Vs Malagas 2001 (20 SA 1222 SCA 1235 paragraph 25, S Vs Mofokeng 199 (1) SACR 502 (W) at 506 (d), Anthony Pareira Vs State of Maharashtra and Article 28 of the constitution

[7]. The applicant submitted that the mandatory life sentence deprived him the right to protection and full benefit of the law when the trial court failed to take into consideration his mitigation on account that the court’s hands were tied. He relied on Section 216, 323 329 and 333 (2) of the Criminal Procedure Code, Section 389 of the Penal Code, Article 27 (1) (2) (3), 50(2) (q) and of the Constitution, Uganda Section 98 of The Trial on Indictment Act, Edwin Otieno Odhiambo V Republic [2009] eKLR, Joseph Njuguna Mwaura And 2 Others Vs Republic [2013] eKLR and Douglas Muthaura Ntoribi V Republic [2014] eKLR.

[8]. The applicant submitted that the directions issued by the Supreme Court that the principle in Muruatetucase cannot be applied in other offences is discriminatory. He relied on Article 20 (3),259 of the Constitution.

[9]. The applicant prays for success of his application. He urges the court to pass a more lenient sentence than the life sentence. He cited case laws and his mitigating factors.

[10]. Mr. Karanja for the respondent opposed the application on the ground that the Supreme Court in directions issued on 6th July 2021 in the Francis Muruatetu case in paragraphs 11, 14 and 15 specifically stated that the principles set out were applicable to murder cases only. The current application is misguided as it does not amount to an appeal nor a revision. This court is bound to abide by the said decision of the Supreme Court. The respondent relied in the case of James Osiro Liech v Republic [2021] eKLR

[11]. The respondent submitted that the application of this Section 333 (2) of the Criminal Procedure Code to a convict serving a life sentence is not practicable as it requires one to be serving a sentence that is determinable which is not the case with the applicant herein.

[12]. The respondent submitted that the applicant filed an appeal at Narok High Court; HCCR AppealNo. 54 of 2017. The same was heard and determined. The only option for the applicant herein is to file an appeal at the Court of Appeal or a Constitutional Petition challenging the constitutionality of the minimum sentence in the Sexual Offence Act. Mr. Karanja urged that the application for resentencing be dismissed for being unmeritorious.

ANALYSIS AND DETERMINATION

[13]. The applicant argued that the directions in Muruatetu case that the principle laid therein does not apply to other cases other than those under section 204 of the Penal Code is discriminatory. In my reading of the directions in Muruatetu, I discern not any, or any attempt to introduce any discrimination to any cadre of offenders. But what has it been like since Muruatetu?

Great flood came…

[14]. Following the landmark decisional law in Muruatetu case, the motion of cases in which convicted persons sought for reduced or lesser sentences on the basis of the principle laid down therein, resembled the tides rising in the sea. Each successive wave rushes forward, breaks, and rolls back; but the great flood is steadily coming in. At the initial glance, the waters seem retiring; so did the applications. When you look a little longer on the waters, you think the waves were rushing capriciously to and from; so was with the applications. But, we kept looking over time, and saw the sea mark disappear one after another; minimum and mandatory sentences in Sexual Offences Act and other offences constantly dissipated on the basis of the principle laid down in the Muruatetu decisional law. There was now no illusion that the applications will not cease coming. It also became clear to the precedent-setting court-the Supreme Court of the Republic of Kenya- of the general direction in which the ocean is moving- and that it was no longer a mere recoil of a wave which regularly follows every advance, but a great general ebb of monumental proportions; a great flood steadily coming in.

Turning the tide

[15]. Extraordinary determination was necessary to stop the tide causing the flood. On 6/7/2021; in an attempt to turn and stem down the tides, the Supreme Court, hemmed application of Muruatetu decisional law to sentences in murder cases only. The Supreme Court reiterated that its decision in the Muruatetu case did not invalidate mandatory sentences or minimum sentences in the Penal Code, the Sexual Offences Act or any other statute, and accordingly cautioned as follows: -

“It should be apparent from the foregoing that Muruatetu cannot be the authority for stating that all provisions of the law prescribing mandatory or minimum sentences are inconsistent with the Constitution’’.

[16]. A sigh of relief; applications founded on Muruatetudecision, but which did not relate to section 204 of the Penal Code, were now deemed to be incompetent, and were consequently dismissed. However, the repose was ephemeral; the directions were not a foreclosure of the applicant’s right to seek appropriate remedy or reduced sentence through the appellate process or on the basis of the Constitution. Now, courts are again faced with a great number of applications or petitions based on the Constitution in which arguments similar to those in Muruatetu case are being advanced in respect of all sentences which deny court discretion in sentencing. The application before me is one of such type.Aluta continua….

Claim of violation of right

[17]. The application herein and the written submissions by the respective parties beg for resolution of: -

i) A claim of violation of right on the basis that court did not exercise discretion in passing sentence upon the applicant as sentence imposed was the only and mandatory sentence prescribed in the Sexual Offences Act.

Jurisdiction

[18]. First things first. This is a quest for sentence re-hearing. Where does the court draw jurisdiction from to conduct sentence re-hearing?

[19]. The application before me is for redress of a denial, violation or infringement of a right or fundamental freedom in the bill of rights. The fundamental provisions cited on re-sentencing are Article 50 (2) (p) (q) of the Constitution as read with Article 50 (6) (a) and (b) of the Constitution. The arguments presented also draw upon the dictum in the case of Francis Karioko Muruatetu & Another –vs- Republic (supra) that prescription of mandatory sentence takes away the discretion of the court in sentencing, and therefore, is inconsistent with the Constitution.

[20]. Under Article 165 of the Constitution, inter alia, the High Court, has jurisdiction to hear and determine application for redress of a denial, violation or infringement of or threat to, a right or fundamental freedom in the bill of rights. Hence, the application is properly before the court.

Circumstances of case

[21]. The Applicant in this case filed appeal number HCCRA NO. 54 of 2017 which was heard; conviction and life sentence was upheld by this court (Bwonwong’a J.) on 27th July, 2017. Two pertinent issues emerge. One; the judge heard the appeal and upheld the life imprisonment. Two: the applicant did not file an appeal to the Court of Appeal.

[22]. Nevertheless, it seems from the judgment of the trial court that the trial magistrate believed only one sentence is prescribed in law; life sentence- and to which he condemned the accused. He stated, thus: -

Accused person ought to have considered his responsibilities before engaging in crime. This is a very serious offence and only one punishment is prescribed by law. Accused therefore sentenced to life imprisonment.

[23]. In so far as the trial court felt it did not have, and did not exercise discretion in sentencing the applicant, there is lawful justification to inquire whether the sentence passed was appropriate sentence. I do note however that indeed this is a serious offence against a small girl of the age of 5 years which took away her innocence. In addition, sexual offences ordinarily cause trauma to, and compromises the integrity of the victim as a human being. Future references to or flash-back of the incident of the sexual assault, either in the memory of the victim or by others or by whatever circumstances reminds of the trauma, shakes the very foundation of the life of the victim. It is such an offence with dire post traumatic consequences. Nonetheless, whereas the applicant should pay for his crime, and act as a deterrent for such debauchery, I should also give the applicant an opportunity to be re-integrated back into society and be a productive citizen. Life sentence may not achieve these purposes. Accordingly, I set aside the life sentence and in lieu thereof sentence him to 25 years’ imprisonment. As the applicant remained in custody since arraignment, and pursuant to section 333(2) of the CPC, the sentence shall run from the date he was first arraigned in court, that is, 11. 2.2013. It is so ordered.

Most desired legislative intervention

[24]. The court has stated before, and it will state again, that there is absolute need for legislative intervention to enact penalties in Sexual Offence which reflect society’s disapprobation and desire to punish for and get rid of these serious offences of sexual debauchery of young children by sexual predators. I doubt a law which expressly prescribes aggravating factors such as: i) age of the child- the younger the child the more severe the sentence; ii) the manner of commission of the offence-violent or with harmful intensity; iii) the harm occasioned (immediate and post)- physical or emotional, etc., to justify minimum or most severe sentence of life imprisonment, will be inconsistent with the Constitution, for it leaves the decision to the discretion of court. With such law, severe sentence such as life sentence will be inflicted in appropriate cases and circumstances without offending the Constitution or any other law on sentencing. I hope this narrative will yield a listening ear.

DATED, SIGNED AND DELIVERED AT NAROK THROUGH TEAMS APPLICATION, THIS 9TH DAY OF MARCH, 2022.

.............................

F. M. GIKONYO

JUDGE

In the presence of:

1. The applicant

2. Ondimu for the Republic

3. Mr. Kasaso CA