[2023] KEHC 25515 (KLR)

Kilonzo v Republic (Criminal Revision E198 of 2022) [2023] KEHC 25515 (KLR) (17 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25515 (KLR)

Republic of Kenya

In the High Court at Makueni

Criminal Revision E198 of 2022

TM Matheka, J

November 17, 2023

IN THE MATTER OF THE CONTRAVENTION OF FUNDAMENTAL FREEDOMS AND RIGHTS UNDER ARTICLE 19(3), 20 (2)(a) 23(1) 27(1) 159(2) (a) (b) and 165 ((3)(b) (d) (1)(11) OF THE CONSTITUTION OF KENYA 2010 AND IN THE MATTER OF MACHAKOS HIGH COURT DECISION PETITION NO 017 OF 2021 AND IN THE MATTER OF CRIMINAL MISC. APPLICATION NO 25 OF 2019 AT MAKUENI HIGH COURT (FROM ORIGINAL CASE FILE NO. 50 OF 2019)

Between

Jeremiah Mutisya Kilonzo

Applicant

and

Republic

Respondent

(Appeal heard and dismissed by (Hon C. Kariuki J) Criminal Appeal 25 of 2019 )

Judgment

1. Through an undated Chamber Summons application filed on 19th July 2022, the applicant has moved this Court to reconsider his 15 years’ sentence. He was convicted for the offence of defilement, contrary to section 8 (1) as read with section 8(4) of the Sexual Offences Act, vide Kilungu PMCCNo. 50 of 2017.

2. He sought prayersinter alia;That the court implements the factors laid out in Philip Maingi and 5 others v R Petition No. 17 of 2021 at Machakos, that the court considers the ‘clemency factors ‘in favour of the petitioner and grant him appropriate reprieve, that the court applies the principles laid out by the Supreme Court concerning a first offender, that the mandatory sentences in the SOA raise a question of law as they deprive the court of its legitimate jurisdiction and its discretion. He cites (Article 25(c), Christopher Ochieng v R [2018]eKLR, Evans Wanjala v RCOA 312/2081 Eldoret

3. In his undated supporting affidavit filed on the same day, he deposes that his application is grounded on the recent developments of the law following the Machakos High Court decision in Philip Maingi & Five Others v R (2022). He has also acknowledged that an appeal to this court (HCCRA No. 25 of 2019) was dismissed on 11/10/2019.

4. The application was canvassed through written submissions.

The Applicant’s Submissions 5. The applicant submits that the Sexual Offences Act prescribes minimum-maximum sentencing provisions which fetter the discretion of judges in imposing alternative sentences. That fair trial and administrative action are some of the fundamental rights that have been deeply entrenched in the Constitution hence the Act should be construed with all the alterations, adaptations, qualifications and exceptions necessary to bring it into conformity with the Constitution.

6. He submits that this court has jurisdiction to determine whether his rights and freedoms have been threatened, denied, violated or infringed. He has relied inter alia on the case of Jasbir Singh Rai & Amp; 3 Others v Tarlochan Singh Rai Estate & Amp; 4 Others [2013] eKLR.

7. He submits that the call at both the International and municipal levels is that courts should interpret the Bill of Rights broadly and liberally in order to give effect to the enforcement of the right with an interpretation which favours the enjoyment of what has been alleged to have been breached or has been threatened to be breached. That there is no prescribed period of limitation as to when one loses the right to pursue infringement to a fundamental right.

8. He submits that whereas he has been before this Court on appeal, he did not address the issue of a resentence review or the violation of his right for the least prescribed sentence under Article 50(2)(q) of the Constitution. Consequently, he contends that this court cannot be termed to be res judicata and it cannot argue that it is functus officio.

9. He submits that the strict application of some of the provisions of the Act may cause injustice to him and to others in his position. He cites inter alia the case of Evans Wanjala Siibi v R (2019)eKLR where the Court of Appeal) stated;“Once again the unfair consequences of a skewed application of that statute predominantly against the male adolescent is quite apparent: two youths caught engaging in sex receive diametrically opposite treatment. The girl is branded a victim and guided to turn against her youthful paramour while the boy, Juliet’s Romeo, is branded the villain, hauled before the courts and visited with a lengthy jail term. We very much doubt that it conduces to good sense, policy and our own conceptions of justice and fairness that the law should be deployed in a manner so disputative and discriminative in effect. A supposed justice resting on the shaky foundation of injustice against young boys hardly warrants the term.”

10. He submits that he is not a young man but he was a Kenya Forest officer who was carrying out his duties diligently and he suffered an injustice when the trial court failed to consider his personal circumstances and those of the case. That he should not have been sentenced to the mandatory minimum sentence and the trial court should not have allowed its hands to be tied by the same. He has also cited the case of Maingi & 5 others v Director of Public Prosecutions & another (Petition E017 of 2021) [2022] where the court) expressed himself as follows;“Taking cue from the decision in Francis Karioko Muruatetu & Anor vnR (2017) (Muruatetu 1) those who were convicted of sexual offences and whose sentences were passed on the basis that the trial courts had no discretion but to impose the said mandatory minimum sentence are at liberty to petition the High Court for orders of resentencing in appropriate cases.”

11. He submits that the Act came into force during the era of Kenya’s 1963 Constitution and this court should consider contextualizing it under that Constitution vis a vis the current Constitutional dispensation. That although the Act is lauded for bringing certainty and sanity to sexual offences sentencing, it is at variance with the aspirations of the 2010 constitution which affirms that every person is equal before the law and has the right to equal protection and equal benefit of the law.

12. He submits that courts in many jurisdictions have always frowned on mandatory sentences that place a limitation to judicial sentencing discretion and has cited the South African Court of Appeal decision in S v Toms1990 (2) SA 802 (A) AT 806 (H)-807(B) where the court 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.”

13. The applicant has urged this court to consider that he is a first offender with no previous records, that he is remorseful, has been in custody for approximately seven years, has been rehabilitated and is reformed. That he also has a recommendation letter from the officer in charge which describes him as well behaved, disciplined, industrious and reformed. That during his time in prison, he attained certificates in carpentry, leather work and shoe work. He submits that the time served is enough punishment for the offence charged if the court takes cognizance of the circumstances surrounding it. He relies on the case of Korir v R (Criminal Appeal 100 of 2019) page 16 (2021) KECA 305(KLR) where the Court of Appeal expressed itself;“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. Relying on sections 4(1) and (2) of the Probation of offenders Act, he submits that he is qualified to be considered for probation and be required to enter into a recognizance, with or without sureties in such sum as the court may deem fit.

15. The applicant has relied on the Judiciary Sentencing Policy and the case of Ahmad Abolfathi Mohammed & Anor v- R (2018) eKLR for the submission that the period, which an accused has been held in custody prior to being sentenced, must be taken into account in computing the period of the sentence. He has urged this court to sentence him to the time served or to probation sentence for the remaining time or to include the time served in the current sentence.

Submissions by the Respondent 16. The State, through Prosecution Counsel Nyakibia Mburu, submits that the applicant’s rights and freedoms have not been infringed hence no declaratory order should issue pertaining to his Constitutional rights.

17. She submits that the orders sought are not applicable because the jurisdiction of the High Court under Article 165(6) of the Constitution is only applicable to decision of the Subordinate Court. That the applicant has not exercised his right of appeal to the Court of Appeal hence this court should not interfere with its own decision.

18. She submits that the applicant’s prayer for an order for probation supervision for the remainder of his sentence amounts to an appeal but agrees that the time spent in remand by the applicant should be considered as requested.

19. I have considered the application and rival submissions and it is my considered view that the only issue for determination is whether the same is merited.

Analysis and determination 20. All the other issues on the constitutionality of the mandatory sentences in the Sexual Offences Act have been dealt with and in and I hold the same position as the learned Judge in Philip Maingi & 5 others. Hence the only issue for determination is whether the application for review of sentence is tenable.

21. Basically, the application before court seeks resentencing. The Supreme Court in Francis Karioko Muruatetu & Another v Republic [2017] eKLR (Muruatetu 1) declared the mandatory nature of the death sentence unconstitutional. The result was a deluge of applications for resentencing in the High Court by convicted persons on death row and serving mandatory sentences seeking reduced or lesser sentences on the basis of the principles laid down therein.

22. This led to Muruatetu 2 where the Supreme Court clarified, in Francis Karioko Muruatetu & another v Republic, Katiba Institute & 5 others [2021] eKLR that its decision did not invalidate mandatory sentences or minimum sentences in the Penal Code, the Sexual Offences Act or any other statute. It cautioned as follows;“It should be apparent from the foregoing that Muruatetu cannot be the authority for stating that all provisions of the law prescribing mandatory or minimum sentences are inconsistent with the Constitution’’.

23. As regards the sentences in respect of other offences in which mandatory sentences were imposed, the Supreme Court held that parties were at liberty to test their constitutional validity by properly filing, presenting, and fully arguing before the Constitutional court and escalating to the Court of Appeal, if necessary, where a similar outcome could be reached.

24. Prior to Muruatetu 2, the Court of had expressed itself on the minimum mandatory sentences in sexual offences. It stated as follows in the case of Dismas Wafula Kilwake v Republic [2019] eKLR;“We are persuaded there is no rational reason why the reasoning of the Supreme Court which holds that the mandatory death sentence is unconstitutional for depriving the courts discretion to impose an appropriate sentence depending on the circumstances of each case, should not apply to the provisions of the Sexual Offences Act, which do exactly the same thing.Being so persuaded, we 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”.

25. Then came the decision in the Philip Maingi case (supra) where the High Court, sitting as a constitutional court, actualized the directions given by the Supreme Court in Muruatetu 2. It gave orders inter alia that;“To the extent that the Sexual Offences Act prescribed mandatory minimum sentences, with no discretion to the trial court to determine the appropriate sentence to impose, such sentences fell afoul of article 28 of the Constitution. However, the court was at liberty to impose sentences prescribed there under so long as the same were not deemed to be the mandatory minimum prescribed sentences.”

26. The applicant herein filed an appeal that was heard dismissed and the sentence confirmed by this court (Hon C. KariukiJ) He proceeded to the Court of Appeal and then withdrew the appeal in order to pursue the avenue opened he believed was opened by the Maingi decision. There is a notice of withdrawal filed in this court on 13th December 2022.

27. However once his sentence was confirmed by this Court, the only recourse available for him is in the Court of Appeal. This is would be different if the matter was on its first appeal before this Court. That is the time the court would have the jurisdiction.

28. The Constitution provides under Article 50 for the right to fair hearing.(1)Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body.(2)Every accused person has the right to a fair trial, which includes the right…(q)if convicted, to appeal to, or apply for review by, a higher court as prescribed by law.

29. The Constitution also empowers the high court with supervisory powers over the subordinate court165(6)The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court (emphasis added)

30. It is my considered view that since the Hon C. Kariuki J considered the sentence and upheld it, this court cannot then purport to revise his decision.

31. It is therefore clear that the applicant has a right of appeal or review to the superior court from the determination of this court in upholding his sentence.

32. In the circumstances, the application is declined.

DATED SIGNED AND DELIVERED THIS 17TH DAY OF NOVEMBER 2023MUMBUA T MATHEKAJUDGECA MwiwaAppellant - presentFor State – Kazungu