[2025] KEHC 1728 (KLR)

Chelalwa v Republic (Criminal Petition E044 of 2021) [2025] KEHC 1728 (KLR) (27 February 2025) (Ruling)

Neutral citation: [2025] KEHC 1728 (KLR)

Republic of Kenya

In the High Court at Eldoret

Criminal Petition E044 of 2021

E Ominde, J

February 27, 2025

Between

Willy Chepsergon Chelalwa

Applicant

and

Republic

Respondent

Ruling

1. The Applicant was charged with the offence of Defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act in Kabarnet Principal Magistrates’ Court Criminal Case No. 260 of 2010. The particulars of the offence were that on 17th March 2010 at (particulars withheld) within Rift valley province, he committed an action that caused penetration with CM, a child aged 7 years. In the alternative, he was charged with committing an indecent act with the same complainant at the same place. The trial court convicted hm on the main charge and sentenced him to serve life imprisonment.

2. Being dissatisfied with the decision, he appealed the same vide Eldoret High Court Criminal Appeal No. 119 of 2010 which appeal was dismissed for lack of merit vide the judgment delivered on 7th June 2012.

3. The Applicant then filed the present application dated 17th March 2021 seeking, in a nutshell, resentencing. The application is premised on the grounds set out on the face of it and the averments in the supporting affidavit.

Hearing of the PetitionThe parties prosecuted the application vide written submissions. The applicant filed written submissions dated 6th November 2024. The Republic filed submissions dated 11th February 2025 through Prosecution Counsel S.G Thuo.

Applicants’ submissions 4. The applicant submitted that the circumstances of this case call for a lesser jail term. He cited the case of Geoffrey Mutai v Rep [2018] eKLR where the High Court of Kenya at Narok found the sentence of life imprisonment was manifestly excessive and reduced the life sentence to 7 years. Additionally, he referred the court to the Petition No. 6 of 2018 - Guyo Jarso Guyo v Rep [2018] eKLR.

5. The Applicant submitted that in the case of Julius Kitsao Manyeso vsRepublic [2023] eKLR the bench abolished the life sentence and declared it unconstitutional and this ruling affected past criminal cases including his. He also cited the South African case of S vs Toms 1990 (2) SA 802 (A) AT 806 (L) - 807(A) in support of this submission.

6. Counsel urged that the right to a fair trial as stipulated under Article 25(c) of the Constitution is undermined because it denies trial magistrates and judge’s discretion when making their decisions, more so in Section 8 (1) as read with Section 8 (2) of the Sexual Offences Act, and as stated in the Kenya Judicial Sentencing Policy Guidelines. He urged that Articles 19 (3) (a), 20 (1), (2), 25 (c), 27, 28, and 50 (1) (2) of the Constitution provides a number of principles; - First, the right to fair trial and fundamental freedoms belongs to each individual; second, the bill of rights applies to all laws and binds all persons; third, all persons have inherent dignity which must be respected and protected; Fourth, the state must ensure access to justice to all; fifth, every person is entitled to a fair trial and lastly, the right to a fair hearing is non derogable. He urged that with these principles in place, the mitigations adduced by the applicant during trial was of no value if the sentence calls for a mandatory minimum sentence.

7. The Petitioner urged that the sentence imposed was heavily excessive and harsh. Further, that the sentence by the trial court failed to observe the credibility of the circumstantial evidence produced by the prosecution. He requested the court to re analyze, re-evaluate the evidence for the sake of justice.

8. The Petitioner urged that he has fully embraced rehabilitation and he has obtained the following qualifications;i.Certificate in Prisoner’s Journey.ii.Certificate in Masomo ya Biblia.iii.Certificate in Philips Act 8. iv.Certificate in Prisoners Fellowship-Kenya.

9. It is the Petitioners’ case that with the knowledge, experience and information acquired in the above areas, he believes he is ready for integration into society. He prayed that the court reduce his sentence as urged.

Respondents’ submissions 10. Learned counsel for the State submitted that this being the Petitioners’ second appeal but the first appeal on sentence, the court is obligated to re-appraise and re-evaluate the evidence tendered before the trial court as stated in the case of Reuben Ombura Muma & Ano v Republic [2018] eKLR.

11. Counsel submitted that the ingredients of the offence of defilement were set out in the case of Dominic Kibet Mwarena v Republic [2013] eKLR as follows;‘the critical ingredients forming the offence of defilement are: the age of the complainant, proof of penetration and positive identification of the assailant.”

12. Counsel urged that the age of the complainant was proved by the trial courts’ own assessment of the minor and also from the estimated age provided by the medical officer that as at the time of the incident, the minor was aged 6 to 7 years old. There was also sufficient medical evidence to prove penetration. Further, that the P3 Form, produced as exhibit 1, was filled in a couple of hours after the incident and indicated that the complainant had fresh tears on her vagina and a presence of discharge mixed with stool, consistent with forcible penile penetration. He pointed out that this was also consistent with the testimony of the complainant.

13. He urged that the positive identification of the accused by the victim was met as the victim recognized the applicant by name and by virtue of the fact that he was their neighbour. The assailant distracted the victims’ grandfather whom she was with immediately before the heinous act, and pretended to seek for the minors’ help to be shown directions, effectively separating her from the grandfather.

14. He then led her into a secluded bush where he defiled her in broad daylight.The victim spent a significant amount of time with the applicant and had ample time to recognize the clothing the assailant was wearing on that day. Counsel cited the decision of the Court of Appeal in Joseph Muchangi Nyaga & Another vs Republic [2013] eKLR in support of this submission. He urged that all the elements were proved to the required standard.

15. Counsel posited that whereas courts previously had the discretion to move away from the prescribed mandatory sentences pursuant to the first case of Francis Karioko Muruatetu, the Supreme Court gave directions on 6th July, 2021 clarifying that Muruatetu1 case was only applicable to cases of murder. Further, that the Court of Appeal in Onesmus Safari Ngao v Republic Criminal Appeal No 5 of 2020 had the following to say with regard to the discretion in sentencing:“Regarding the issue of exercise of discretion in sentencing, on 6th July, 2021 the Supreme Court in Francis Karioko Muruatetu and Another v Republic [2021] eKLR gave some guidelines to the effect that the Muruatetu case cannot be the authority for stating that all mandatory or minimum sentences are inconsistent with the Constitution. The implication thereof is that upon conviction, courts must pass the mandatory sentences that are prescribed under the Sexual Offences Act.”

16. Counsel urged the court to uphold the life sentence as provided by law for a charge under Section 8(1) as read with Section 8(2) of the Sexual Offences Act No 3 of 2006. He maintained that the applicant received the appropriate sentence for his heinous act on a 7-year-old girl as outlined in the Supreme Court decision in Supreme Court of Kenya Petition No E018 0/2023 - Republic vs Joshua Gichuki Mwangi and Others where the apex court faulted the decision of courts applying Muruatetu 1 to discretionary sentences contrary to the written laws. He submitted that the argument that the applicant has now seen the light of Christ and has reformed in prison should not be the only considerations for resentencing. Further, that the permanent scars on the 7-year-old girl cannot be wished away. She might never recover from the said painful trauma and her interests are paramount in any decision this court would make.

17. Counsel submitted that Section 333(2) of the Criminal Procedure Code provides that every sentence shall be deemed to commence from the date on which it was pronounced except where otherwise provided in this Code. By extension the section is alive to the fact that the same can be varied where the law provides so. He urged that although courts are bound to take into account the period spent in pre-trial custody, this section shall not apply to an order where a subordinate court has failed to pass a sentence which it was required to pass under the written law. He referred the court to the holding by W.A. Okwany J in Nyamira High Court Criminal Revision No.E113 of 2023 - Daniel Ondieki Nyang’au v R.

18. Counsel pointed out that the applicant seeks to be credited the time he spent in pre-trial custody from the date of plea from 23rd March 2010 to his sentencing on 2nd August 2010, stating that it should be noted that as at the time he was being arraigned for plea taking, he was already facing a robbery with violence charge in a different matter and, that the offence was not bailable at that time. Given the foregoing arguments and a reading of Section 333(2) of the Criminal Procedure Code, it goes without saying that the law then exempted the application of Section 333(2) and disqualifies the applicant from its application. Counsel concluded by praying the court dismiss the application and uphold the life sentence.

Analysis & Determination 19. The Supreme Court of Kenya in the case of Samuel Kamau Macharia & Another v Kenya Commercial Bank Ltd & 2 Others, Application No. 2 of 2011 stated as follows;“A court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a court can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law…”

20. Article 23(1) of the Constitution provides: -‘The High Court has jurisdiction, in accordance with Article 165, to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights.’

21. Still on jurisdiction, Article 50(2)(p) of the Constitution provides: -50. (2) Every accused person has the right to a fair trial, which includes the right— to the benefit of the least severe of the prescribed punishments for an offence, if the prescribed punishment for the offence has been changed between the time that the offence was committed and the time of sentencing;

22. In light of the above provisions of the law, the Court is satisfied that it is clothed with the requisite jurisdiction to handle the application for resentencing.

23. On the issue of the constitutionality of the sentence of life imprisonment that was imposed upon the applicant by the Trial Court, the Court of Appeal in Julius Kitsao Manyeso v Republic, Criminal Appeal No. 12 of 2021, the court expressed itself as follows;“We note that the decisions of this Court relied on by the Appellant, namely Evans Wanjala Wanyonyi v Rep [2019] eKLR and Jared Koita Injiri v Republic Kisumu Crim. App No 93 of 2014 were decided before the Supreme Court clarified the application of its decision in Francis Karioko Muruatetu & another v Republic [2021] eKLR and limited its finding of unconstitutionality of mandatory sentences to mandatory death sentences imposed on murder convicts pursuant to section 204 of the Penal Code. This fact notwithstanding, we are of the view that the reasoning in Francis Karioko Muruatetu & Another v Republic [2017] eKLR equally applies to the imposition of a mandatory indeterminate life sentence, namely that such a sentence denies a convict facing life imprisonment the opportunity to be heard in mitigation when those facing lesser sentences are allowed to be heard in mitigation. This is an unjustifiable discrimination, unfair and repugnant to the principle of equality before the law under Article 27 of the Constitution. In addition, an indeterminate life sentence is in our view also inhumane treatment and violates the right to dignity under Article 28, and we are in this respect persuaded by the reasoning of the European Court of Human Rights in Vinter and others v The United Kingdom (Application nos.66069/09, 130/10 and 3896/10) [2016] III ECHR 317 (9 July 2013) that an indeterminate life sentence without any prospect of release or a possibility of review is degrading and inhuman punishment, and that it is now a principle in international law that all prisoners, including those serving life sentences, be offered the possibility of rehabilitation and the prospect of release if that rehabilitation is achieved.

24. I have addressed my mind to and considered the submission by the Counsel for the State that the act committed upon the complainant was a heinous act committed upon a seven-year-old girl. That in light of the decision of the Court of Appeal in Onesmus Safari Ngao v Republic Criminal Appeal No 5 of 2020 the sentence of life imprisonment meted out upon the applicant is legal and lawful and should be upheld.

25. This decision cited by the State and the decision in Julius Kitsao Manyesov Republic, Criminal Appeal No. 12 of 2021 both emanate from the Court of Appeal. Both decisions are on the minimum mandatory sentences as provided in the Sexual Offences Act. The only distinction is that in the Onesmus Safari Ngao case, the applicant had been sentenced to ten (10) years imprisonment and that decision was upheld on the reasoning that the decision in Muruatetu was with respect to murder cases only.

26. In the Julius Kitsao Manyeso case, the applicant was sentenced to life imprisonment which sentence he challenged on the basis that it was unconstitutional for the reason given therein and the Court upheld his Appeal for the reasons herein above highlighted (See above excerpt of the case). In light of the fact that the decision of the Court of Appeal in the Julius Kitsao Manyeso case was in respect of the unconstitutionality of the sentence of life imprisonment due to its indeterminate nature as is the application now before this court, then I find this decision to be more relevant because the issues for consideration as raised in the appeal are similar. In the said case, the complainant was four and a half years old. The Court of Appeal set aside the sentence of life imprisonment and substituted it with a term sentence of 40 years’ imprisonment.

27. Further to the above, I note that the applicant’s Appeal against conviction and sentence was delivered by the Hon Mr. Justice Azangalala (as he then was) on 7th June 2012. The Court of Appeal decision was rendered on 7th July 2023 almost eleven years after his 1st Appeal against conviction and sentence. It follows therefore that the provisions of Article 50(2)(p) of the Constitution is relevant to his application for reasons that the prescribed punishment for the offence has since changed.

28. In re-appraising and re-evaluating the evidence, given that the applicant’s appeal on conviction and sentence had already been dismissed by this court and this is appeal is on sentence only, it is my considered opinion that the most relevant piece of evidence in assisting the court determine a sentence that is not only fair to the applicant but is also commensurate with the charge that the applicant faced is the evidence on the age of the complainant and the harm occasioned to her by the act of the applicant.

29. In this case, the complainant was 7 years old. The P3 Form, produced as exhibit by the prosecution, which was filled in just a couple of hours after the incident indicated that the complainant had fresh tears on her vagina and there was the presence of discharge mixed with stool emanating from her genitalia consistent with forcible penile penetration. Evidently, the complainant must have undergone a lot of pain and trauma at a very tender age and the possibility that she will be scarred for life not just mentally and emotionally but also physically does exist.

30. In light of the above, I am persuaded that the sentence of 40 years’ imprisonment meted out by the Court of Appeal in the above cited case in circumstances that are almost similar to this case in terms of the age and harm cause to the complainant is just and fair. I therefore set aside the sentence of life imprisonment imposed by the Trial Court and substitute the same with a term of 40 years’ imprisonment.

31. On the issue for the consideration by the Court of the time that the appellant spent in remand as provided under Section 333(2) of the Criminal Procedure Code, a perusal of the record of the Trial Court shows that at the time of the taking of the plea in the defilement case, the Applicant was already in custody for the offence of robbery with violence. This of course then means that the sentence cannot run from the date of his arrest.

32. But more importantly, in light of the fact that the applicant was already in remand for another offence as at the time of plea, the applicant ought to have indicated to court, the period of time he was in custody specifically over the charge of defilement that he seeks to benefit from under Section 333(2) of the Criminal Procedure Code. He has not done this at all either in his application or in his submissions. For this reason, the Court is not able to give any directions under this Section for reasons that it has nothing to base its decision on. The upshot then is that this aspect of the application lacks merit and the same is dismissed.

33. Right of Appeal 14 days

READ DATED AND SIGNED AT ELDORET ON 27TH FEBRUARY 2025E. OMINDEJUDGE