[2020] KEHC 6830 (KLR)

[2020] KEHC 6830 (KLR)

The court held that, following the Supreme Court's decision in Muruatetu and subsequent Court of Appeal decisions, it has jurisdiction to re-sentence persons previously subjected to mandatory minimum sentences under Section 8 of the Sexual Offences Act. The court found that mandatory minimum sentences are...

Source-derived case information.

Citation
[2020] KEHC 6830 (KLR)
Parties
Appellant: Jilo Abdalla Akare; Respondent: Republic
Court
High Court
Court Station
High Court at Malindi
Jurisdiction
Kenya
Case Number
Constitutional Petition 19 of 2019
Procedural Posture
Constitutional Petition / Re Sentencing Ruling
Outcome
petition for re-sentencing allowed; sentence substituted
Judges
DB Nyakundi
Legal Topics
Sentencing Principles, Mandatory Minimum Sentences, Defilement Offences, Mitigation and Aggravation, Judicial Discretion
Source Language
english
Criminal Law Sentencing Principles Mandatory Minimum Sentences Defilement Offences Mitigation and Aggravation Judicial Discretion

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Summary, issues, holding and outcome

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Parties

Jilo Abdalla Akare

Appellant

Republic

Respondent

Procedural Posture

Constitutional Petition / Re Sentencing Ruling

Legal Issues

  1. 1 Whether the court has jurisdiction to re-sentence the petitioner following the Supreme Court decision in Muruatetu.
  2. 2 Whether mandatory minimum sentences under Section 8 of the Sexual Offences Act are unconstitutional for removing judicial discretion.
  3. 3 What sentence is appropriate in light of aggravating and mitigating circumstances in a defilement case.

Ratio Decidendi

The court held that, following the Supreme Court's decision in Muruatetu and subsequent Court of Appeal decisions, it has jurisdiction to re-sentence persons previously subjected to mandatory minimum sentences under Section 8 of the Sexual Offences Act. The court found that mandatory minimum sentences are unconstitutional to the extent that they remove judicial discretion to consider aggravating and mitigating factors. In this case, the aggravating circumstances were severe: the petitioner abused a position of trust, the victim was a young school-going girl, and the offence caused significant psychological and physical harm. The court found that the mitigating factors, including the...

Court Disposition

petition for re-sentencing allowed; sentence substituted

Orders

  • The petitioner is sentenced to 18 years' imprisonment from the date of arrest.
  • Right of appeal within 14 days.