[2020] KEHC 6638 (KLR)
The court found that the mandatory life sentence imposed on the applicant for the offence of defilement under Section 8(2) of the Sexual Offences Act was unconstitutional, in line with the Supreme Court's decision in Muruatetu and subsequent superior court rulings. The court held that sentencing should allow for...
Source-derived case information.
- Citation
- [2020] KEHC 6638 (KLR)
- Parties
- Applicant: Ibrahim Huriye Derow; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Garissa
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 73 of 2019
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Resentencing
- Outcome
- application for resentencing allowed; life sentence set aside; matter referred for resentencing
- Judges
- CM Kariuki
- Legal Topics
- Defilement, Sentencing Principles, Mandatory Sentences, Sexual Offences Act, Resentencing, Constitutional Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ibrahim Huriye Derow
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Application for Resentencing
Legal Issues
- 1 Whether the mandatory life sentence for defilement under Section 8(2) of the Sexual Offences Act is unconstitutional in light of the Muruatetu decision.
- 2 Whether the applicant is entitled to resentencing following the Supreme Court's pronouncement on mandatory sentences.
Ratio Decidendi
The court found that the mandatory life sentence imposed on the applicant for the offence of defilement under Section 8(2) of the Sexual Offences Act was unconstitutional, in line with the Supreme Court's decision in Muruatetu and subsequent superior court rulings. The court held that sentencing should allow for mitigation and judicial discretion. Consequently, the life sentence was set aside, and the matter was referred to the Chief Magistrate’s Court at Garissa for resentencing after considering mitigation.
Court Disposition
application for resentencing allowed; life sentence set aside; matter referred for resentencing
Orders
- The life sentence in Criminal Case No. 1600/012 Garissa is set aside.
- The matter is referred to Chief Magistrate’s Court at Garissa for sentencing after mitigation is considered.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT GARISSA
MISC. CRIMINAL APPLICATION NO. 73 OF 2019
IBRAHIM HURIYE DEROW............................................APPLICANT
VERSUS
REPUBLIC.......................................................................RESPONDENT
RULING
1. The applicant was charged, convicted and sentenced to life imprisonment with offence of defilement contrary to Section 8 (1) (2) of Sexual Offences Act No. 30/2006 in Criminal Case No. 1600 of 2012.
2. He lodged appeal No. 134/013 which was also dismissed after full hearing.
3. He has now moved this court for re-sentencing relying on Muruatetu case and the subsequent Superior Court case which held that the mandatory nature of sentence is unconstitutional.
4. The prosecution does not oppose the application but urges court to refer file to Lower Court for mitigation and sentence.
5. Thus, the court makes the following orders;
(i) The life sentence in Criminal Case No. 1600/012 Garissa is set aside.
(ii) The matter is referred to Chief Magistrate’s Court at Garissa for sentencing after mitigation are considered.
DATED, DELIVERED AND SIGNED AT GARISSA THIS 2ND DAY OF APRIL, 2020.
..........................
C. KARIUKI
JUDGE