[2022] KEHC 15061 (KLR)

Ekesa v Republic (Criminal Appeal E002 of 2022) [2022] KEHC 15061 (KLR) (9 November 2022) (Judgment)

Neutral citation: [2022] KEHC 15061 (KLR)

Republic of Kenya

In the High Court at Bungoma

Criminal Appeal E002 of 2022

DK Kemei, J

November 9, 2022

Between

Jonai Makokha Ekesa

Petitioner

and

Republic

Respondent

Judgment

1. The Petitioner herein Jonai Makokha Ekesa was charged before the Chief Magistrate’s Court at Bungoma in Sexual Offences Case No 857 of 2015 with the offence of defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act, No 3 of 2006. The particulars were that the Appellant, on October 21, 2013 while at [Particulars Withheld] in Khasoko Location within Bungoma County, intentionally and unlawfully caused his penis to penetrate the vagina of EM, a child aged Fifteen (15) years.

2. The Petitioner also faced an alternative count of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act No 3 of 2006 the particulars were that the Appellant, on October 21, 2013 while at [Particulars Withheld] in Khasoko Location within Bungoma County, intentionally and unlawfully caused his penis to come into contact with the vagina of EM, a child aged Fifteen (15) years.

3. The Petitioner is now before this court vide the petition dated December 7, 2020 and filed on October 8, 2020 pursuant to Article 50 (2) of the Constitution of Kenya, 2010 praying for this court to review his sentence.

4. The Petitioner’s case is that he was convicted of the offence of defilement contrary to section 8(1) as read with 8(3) of the Sexual Offences Act No. 3 of 2006 in Bungoma Sexual Offences Case No 857 of 2015 and was convicted and sentenced to serve 15 years’ imprisonment. He avers that his petition seeks redress of sentence review under Article 23(3) (f) and article 50(2) (q) as read with Article 50(6) of the Constitution of Kenya as read with section 354 and 364 of the Criminal Procedure Code.

5. The Petitioner avers that he has not appealed in any court within the republic but it is noted that an appeal was initially filed in Bungoma High Court, namely Criminal Appeal No 61 of 2016 but the same was later withdrawn by the Petitioner. He lodged this petition under Article 50 (2) (q) of the Constitution seeking review of his sentence on several grounds inter alia; that he is very remorseful for the offence that he committed; that during his incarceration he has trained and learnt self-reliant skills and vows not to indulge in any criminal activity.

6. In his mitigation he submitted that since his incarceration he successfully sat for his KCPE in the year 2017 at Kisumu maximum security prison. He also submitted that he underwent training on drug and mind education training and also acquired a diploma in Bible study. He also managed to acquire, skills in carpentry and joinery attaining grade III and II respectively. He submitted that he wished to use the knowledge and skills acquired to fend for his family and promises to be an ambassador of peace and promote peaceful coexistence among members of the society.

7. The petition is opposed by the Respondent vide submissions filed on July 26, 2022. The Respondent’s case is that the court has the powers under section 354 and 364 of the Criminal Procedure Codeto review sentences. Counsel urged the court not to review this sentence as the Petitioner was duly sentenced under section 8(3) of the Sexual Offences Act which provides for minimum mandatory sentence of 15 years’ imprisonment as that was the sentence prescribed by the statute and which is the minimum possible in law. Counsel further submitted that the rules for alteration of sentences were laid down in the case of Joseph Mureithi Kanyiita vs Republic (2017) eKLR by the Court of Appeal inter alia; whether the sentence given was illegal or unlawful; whether the sentence was given under a palpable misdirection that is apparent on record; whether the trial court overlooked a material factor while issuing the sentence; whether the trial court acted on a wrong principle and whether the sentence imposed was manifestly excessive or manifestly high. It was submitted that the said 15 years’ imprisonment is reasonable, not illegal, provided for under the Sexual Offences Act and was not issued on the consideration of an immaterial fact and that this court should not interfere with the same. On the aspect of section 333(2) of the Criminal Procedure Code, Counsel submitted that the same is not applicable in this case as the Petitioner was released on bond on April 15, 2015 and was out on bond until the conclusion of the trial and was remanded in custody following his conviction.

8. This petition is not concerned with the guilt or otherwise of the Petitioner. He is already convicted and wishes for his sentence to be reduced.

9. Section 8 of the Sexual Offences Act provides as follows:“8. (1)A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.(2)A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life.(3)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.(4)A person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years.”

10. Sections 8 (3) provide for mandatory minimum sentences. However, the constitutionality of such sentences is highly doubtful since they do not permit the court to consider the peculiar circumstances of the case in order to arrive at an appropriate sentence informed by those circumstances. While the court has the leeway to impose any sentence over and above the minimum sentence, the sections do not permit the court the discretion to consider whether a lesser punishment would be more appropriate in the circumstances.

11. InS vs Mchunu and Another (AR24/11) [2012] ZAKZPHC 6 Kwa Zulu Natal High Court held that:“It is trite law that the issue of sentencing is one which vests a discretion in the trial court. The trial court considers what a fair and appropriate sentence should be. The purpose behind a sentence was set out in S v Scott-Crossley 2008 (1) SACR 223 (SCA) at para 35:‘Plainly any sentence imposed must have deterrent and retributive force. But of course one must not sacrifice an accused person on the altar of deterrence. Whilst deterrence and retribution are legitimate elements of punishments, they are not the only ones, or for that matter, even the over-riding ones.’The Judgment continues:“. . . [i]t is true that it is in the interests of justice that crime should be punished. However, punishment that is excessive serves neither the interests of justice nor those of society.”

12. In the Court of Appeal at Nyeri Appeal No 84 of 2015Joshua Gichuki Mwangi vs Republic, the appellate court placing reliance on the respective decisions of Odunga J (as he was then) in Philip Mueke Maingi & 5 Others v Director of Public Prosecutions & the Attorney General and that of Mativo J (as he was then) in High Court Constitutional & Judicial Review Division Petition No 97 of 2021 was aware of the fact that certain accused persons are clearly deserving of no less than the minimum sentences set forth in the Sexual Offences Act owing to the heinousness of the offences committed and they will continue to be appropriately punished as was pronounced in Athanus Lijodi Vs Republic [2021] eKLR;“On the issue of sentence, we reiterate that the life sentence imposed by the trial magistrate and affirmed by the High Court is not unconstitutional and can still be meted out in deserving cases Muruatetu case (supra) notwithstanding. This court has on many occasions invoked the Muruatetu decision to reduce sentences that were hitherto deemed as minimum sentences. (See for instance Evans Wanjala Wanyonyi v Republic [2019] eKLR). Having said that however, we must hasten to add that this court will uphold a sentence prescribed by the Sexual Offences Act if upon proper exercise of sentencing discretion and consideration of the facts of each case, such sentence is deserved or merited.”

13. The Appellate Court further held that: -“On the other hand, there are definitely others deserving of leniency and this is the leeway we are asserting that ought to be at the disposal of courts. A good example is in the holding of this Court in Korir vs Republic (Criminal Appeal 100 of 2019 [2021] KECA 305 (KLR) while reducing the appellant’s sentence to the period already served. It reasoned;“The appellant has contended that he was a first offender and a young man whose life is greatly affected by the imprisonment and that while in prison he had taken full advantage of the rehabilitative programmes offered in the correctional facility. It is also not lost on this court that the appellant has been in custody since February 2015, a period of slightly over 6 years to date. We also note that the appellant had serious intentions of marrying GC, a girl aged 15 years. However, the law does not allow for the marriage of girls below the age of 18 years. In our considered opinion and in view of the above, these factors coupled with the facts in this case mitigate for leniency. The appellant had the intention of marrying PW1. He took her to his grandparents’ place and left her to stay there. In applying the Muruatetu decision (supra) that removed the bar to discretion posed by minimum sentences, and considering that the appellant has been in custody for slightly over 6 years, we consider the period that he has served to be sufficient sentence in the circumstances of this case.”

14. The courts have always frowned on mandatory sentences that place a limitation on judicial discretion. In S vs Toms 1990 (2) SA 802 (A) at 806(h)-807(b), the South African Court of Appeal (Corbett, CJ) held that:“The infliction of punishment is a matter for the discretion of the trial Court. Mandatory sentences reduce the Court’s normal sentencing function to the level of a rubberstamp. The imposition of mandatory sentences by the Legislature has always been considered an undesirable intrusion upon the sentencing function of the Court. A provision which reduces the Court to a mere rubberstamp, is wholly repugnant.”

15. And in S vs Mofokeng1999(1) SACR 502 (W) at 506 (d), Stegmann, J opined that:“For the Legislature to have imposed minimum sentences severely curtailing the discretion of the Courts, offends against the fundamental constitutional principles of separation of powers of the Legislature and the Judiciary. It tends to undermine the independence of the courts and to make them mere cat’s paws for the implementation by the legislature of its own inflexible penal policy that is capable of operating with serious injustice in particular cases.”

16. Further, in S vs Jansen1999 (2) SACR 368 (C) at 373 (g)-(h), Davis, J held that:“mandatory minimum sentences disregard all individual characteristics and each case is treated in a factual vacuum, leaving no room for an examination of the prospect of rehabilitation and of the incarceration method to be adopted. Such a system can result in a gross disregard of the right to dignity of the accused.”

17. It is not disputed that the opinion of the Supreme Court with respect to mandatory sentences apply 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.”

18. The approach to be adopted in determining an appropriate sentence where a minimum sentence is prescribed was set out in S vs Malgas2001 (2) SA 1222 SCA 1235 paragraph 25 as follows:“What stands out quite clearly is that the courts are a good deal freer to depart from the prescribed sentences than has been supposed in some of the previously decided cases and that it is they who are to judge whether or not the circumstances of any particular case are such as to justify a departure. However, in doing so, they are to respect, and not merely pay lip service to, the Legislature's view that the prescribed periods of imprisonment are to be taken to be ordinarily appropriate when crimes of the specified kind are committed.”

19. The trial court in this matter considered the mitigating submissions of the Petitioner, but sentenced him to a mandatory 15 years in prison. There was nothing the court could do because its hands were tied by statute. The foregoing developments in the law now makes it possible for courts to consider appropriate sentencing in each particular case.

20. I have considered this petition especially in the light of the afore-relied upon cases, and I am satisfied that the Petitioner has made out a case, and that the petition in regard to review of the mandatory minimum sentences under sections 8 of the Sexual Offences Act is proven on a balance of probability.

21. The petitioner has served six years since conviction and his mitigation has satisfied this court. I am satisfied that the circumstances of this case would afford the Petitioner’s lesser years in prison than the said 15 years had the trial court’s hands not been tied up by the statute on mandatory minimum sentence. To that extent I find the petition lodged by the petitioner has merit and ought to be allowed.

22. Of special note for consideration is the attitude of the Petitioner while in prison and what he has achieved or done there so far. The Petitioner has been very resourceful in prison, he has undertaken various programmes that has made him resourceful and also competitive in the services he offers. He has led by example and his reformation is almost palpable. He is also a young man with a family that was dependent on him. He has demonstrated a case for leniency. Accordingly, therefore, I hereby set aside the mandatory sentence of 15 years and in place substitute it with a sentence of ten years’ imprisonment from the date of conviction namely February 25, 2016. It is so ordered.

DATED AND DELIVERED AT BUNGOMA THIS 9TH DAY OF NOVEMBER, 2022. D. KemeiJudgeIn the presence of:Miss Natwati for PetitionerMiss Mukanga for RespondentKizito Court Assistant