[2020] KEHC 7855 (KLR)
The court found that the mandatory minimum sentence under Section 8 of the Sexual Offences Act should not constrain judicial discretion, following the Supreme Court's decision in Muruatetu. The petitioner, having served 3.5 years, expressed remorse and was relatively young at the time of conviction. However, the...
Source-derived case information.
- Citation
- [2020] KEHC 7855 (KLR)
- Parties
- Petitioner: Kennedy Okoth Bare; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Petition 57 of 2019
- Procedural Posture
- Constitutional Petition / Resentencing After Conviction and Appeal
- Outcome
- Petition for resentencing allowed; sentence reduced.
- Judges
- TW Cherere
- Legal Topics
- Defilement, Sentencing Discretion, Mandatory Sentences, Resentencing, Sexual Offences Act, Rehabilitation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kennedy Okoth Bare
Petitioner
Republic
Respondent
Procedural Posture
Constitutional Petition / Resentencing After Conviction and Appeal
Legal Issues
- 1 Whether the mandatory minimum sentence under Section 8 of the Sexual Offences Act is constitutional in light of recent Supreme Court jurisprudence.
- 2 Whether the petitioner is entitled to resentencing based on the unconstitutionality of mandatory sentences.
- 3 What is the appropriate sentence for the petitioner considering the circumstances of the offence and the time already served.
Ratio Decidendi
The court found that the mandatory minimum sentence under Section 8 of the Sexual Offences Act should not constrain judicial discretion, following the Supreme Court's decision in Muruatetu. The petitioner, having served 3.5 years, expressed remorse and was relatively young at the time of conviction. However, the psychological impact on the 16-year-old complainant was significant. Balancing these factors, the court determined that a sentence of 7 years' imprisonment from the date of conviction was appropriate, replacing the original 15-year sentence.
Court Disposition
Petition for resentencing allowed; sentence reduced.
Orders
- The petitioner is re-sentenced to 7 years' imprisonment from 11th August, 2016.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISUMU
(CORAM: CHERERE- J.)
PETITION NO.57 OF 2019
BETWEEN
KENNEDY OKOTH BARE.................PETITIONER
AND
REPUBLIC.........................................RESPONDENT
JUDGMENT
Introduction
1. On 11th August, 2016, the trial court in WINAM CRIMINAL CASE NO. 1112 OF 2014, convicted and sentenced KENNEDY OKOTH BARE, (Petitioner) to 15 years’ imprisonment for the offence of defilement contrary to Section 8(1) as read with section 8(4) of the Sexual Offences Act No. 3 of 2006.
2. Petitioner lodged an appeal KISUMUHIGH COURT CRIMINAL APPEAL NO. 38 OF 2016 which by a judgment dated 30th May, 2017 upheld the conviction and sentence.
3. The Petitioner has petitioned this court for resentencing. He expressed remorse and stated that he was arrested at the age of 20 years and had served over 3 years since conviction within which time he has not undertaken any training.
4. Ms. Gathu, Senior Prosecution Counsel for the state opposed the appeal on the ground that the Petitioner had not served adequate sentence required to have him fully rehabilitated.
Analysis and Determination
5. The Supreme Court’s decision in Francis Karioki Muruatetu & Another v Republic & 5 others [2016] eKLR declaring the mandatory death sentence unconstitutional has necessitated resentencing of all persons previously sentenced to the mandatory sentences.
6. In Dismas Wafula Kilwake v Republic [2018] eKLR, the Court of Appeal set out the factors to be considered in sentencing under the Act. It observed as follows:
[W]e hold that the provisions of section 8 of the Sexual Offences Act must be interpreted so as not to take away the discretion of the court in sentencing. Those provisions are indicative of the seriousness with which the Legislature and the society take the offence of defilement. In appropriate cases therefore, the court, freely exercising its discretion in sentencing, should be able to impose any of the sentences prescribed, if the circumstances of the case so demand. On the other hand, the court cannot be constrained by section 8 to impose the provided sentences if the circumstances do not demand it. The argument that mandatory sentences are justified because sometimes courts impose unreasonable or lenient sentences which do not deter commission of the particular offences is not convincing, granted the express right of appeal or revision available in the event of arbitrary or unreasonable exercise of discretion in sentencing.
7. Even though Appellant was a first offender, the psychological effect of the offences on the 16-year-old complainant cannot be underestimated.
8. The Appellant has served 3 ½ years. He has expressed remorse and he is relatively a young man. I re-sentence him to 7 years from 11th August, 2016 when he was convicted.
DELIVERED AND SIGNED IN KISUMU THIS 27th DAY OF FEBRUARY 2020
T. W. CHERERE
JUDGE
In the presence of-
Court Assistant - Amondi/Okodoi
Petitioner - Present in person
For the State - Ms. Maureen