[2023] KEHC 319 (KLR)

Kimeu v Republic (Miscellaneous Criminal Application E124 of 2022) [2023] KEHC 319 (KLR) (26 January 2023) (Ruling)

Neutral citation: [2023] KEHC 319 (KLR)

Republic of Kenya

In the High Court at Mombasa

Miscellaneous Criminal Application E124 of 2022

A. Ong’injo, J

January 26, 2023

Between

Matingo Kimeu alias Dan

Applicant

and

Republic

Respondent

Ruling

1. The applicant herein was charged and convicted with the offence of defilement contrary to section 8 (1) as read with 8 (2) of the Sexual Offences Act No 3 of 2006 vide SO No 38 of 2016 at Mombasa by Hon E Kagoni where judgement was delivered on April 4, 2017 and the applicant was sentenced to serve life imprisonment.

2. The applicant then appealed against the conviction and sentence HCRA No 67 of 2017 where Hon Lady Justice A Ongeri dismissed the appeal and confirmed both conviction and sentence.

3. Through an application filed on June 20, 2022, the applicant urged the court to consider his mitigation in respect to articles 25 (c) and 50 of the Constitution as well as the decision of Odunga, J in the case of Philip Mueke Maingi and 5othersv RepConst Pet No E017 of 2021 where the court dealt with the issue of mandatory minimum sentences.

4. The applicant prays for orders that this honourable court reviews his sentence in consideration of the mitigating factors, that this honourable court takes into account the period that he has been in custody both pre-conviction and post-conviction and any other order that the court deems fit to make.

5. The mitigating factors that the applicant laid out for consideration included reformed behavior in prison, that he is a first offender, that he is 43 years of age, and that he left behind a jobless wife with 5 children together with his mother who are now suffering due to his absence.

6. section 8 (2) of the Sexual Offences Act No 3 of 2006 provides: -“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.”

7. Justice Odunga in Petition No E017 of 2021, Phillip Mueke Maingi & 5othersv DPP & AG while following the principles set in Francis Karioko Muruatetu &anotherv DPP & AGhad this to say in regard to minimum and maximum sentences in sexual offence: -“It may be argued that these decisions of the Court of Appeal ought not to be followed on the ground that they are per incurium in light of the clarification in Muruatetu 2. However, it is my view that the Supreme Court in Muruatetu 2 did not address itself to the constitutionality of mandatory minimum sentences. It simply clarified that Muruatetu 1 only dealt with murder. I agree with that clarification. However, the Supreme Court left it open to the High Court to hear any petition that may be brought challenging inter alia mandatory minimum sentences and make a determination one way or another. The Supreme Court did not hold that the High Court ought not to apply the reasoning in Muruatetu 1. ”“In my view, even without the application of the ratio in Muruatetu 1, based on what I have stated hereinabove, I find that whereas the sentences prescribed under the Sexual Offences Act are not unconstitutional by the mere fact of such prescription and the trial courts are at liberty to impose them, the imposition of the same as the minimum mandatory sentences does not meet the constitutional threshold particularly section 28 of the Constitution.”…“My view is therefore that whereas the sentences prescribed may not be necessarily unconstitutional in the sense that they may still be imposed, in deciding what sentences to impose the Courts must ensure that whatever sentence is imposed upholds the dignity of the individual as provided under article 28 of the Constitution. In other words, since the provisions of the Sexual Offences Act came into force earlier than the Constitution, the prima facie mandatory sentences must now be construed with the said adaptations, qualifications and exceptions when it comes to the mandatory minimum sentences and particularly where the said sentences do not take into account the dignity of the individuals as mandated under article 28 of the Constitution as appreciated in the Muruatetu 1 Case. It is the construing of those provisions as tying the hands of the trial courts that must be held to be unconstitutional.”“At the risk of being repetitive, I must make it clear that my finding herein does not mean that the court ought not to mete out what appears as prima facie mandatory minimum sentence. What it means is simply that the circumstances of the offence must be considered and having done so nothing bars the court from imposing such sentences as are appropriate to the offence committed. I gather support from the opinion held by the Court of Appeal in Dismas Wafula Kilwake v Republic [2019] eKLR …”

8. In consideration of the above authority and the holding by Gikonyo, J in Miscellaneous Criminal Application No E014 of 2021 Narok High Court in Baragoi Rotiken v Republic, this court finds that the mandatory life sentence deprives the trial court of the discretion in sentencing.

9. The applicant was given an opportunity to mitigate and the trial court considered the mitigation and imposed life imprisonment for the offence of defilement. In consideration that a life sentence is infinite, the court has discretion to consider mitigating circumstances of the accused and the prisons are also certain how long they are going to hold an accused person. Determinate sentences meet the objectives of sentencing policy guidelines because of their certainty.

10. In Baragoi Rotiken v Republic (2022) eKLR it was held that severe sentence such as life imprisonment is applied in appropriate circumstances and in accordance with the Constitution or other laws on sentencing. Further, the position on determinate sentence was held by Hon Lady Justice Njoki Mwangi in Musinda Mahupa v Republic (2020) eKLR where life imprisonment sentence was substituted with a determinate sentence

11. In consideration of the above, this court finds that the application has merit and is allowed. The applicant’s life sentence is reviewed to 25 years imprisonment.

12. On when the sentence should start running, section 333 (2) of the Criminal Procedure Code provides as follows: -“Subject to the provisions of section 38 of the Penal Code, every sentence shall be deemed to commence from and to include the whole of the day of, the date on which it was pronounced, except where otherwise provided in this Code. Provided that where the person sentenced under sub section (1) has prior, to such sentence shall take account of the period spent in custody.”

13. Further to the above section, the court in Bethwel Wilson Kibor v Republic [2009] eKLR held as follows: -“By proviso to section 333(2) of the Criminal Procedure Code where a person sentenced has been held in custody prior to such sentence, the sentence shall take into account of the period spent in custody. Ombija J, who sentenced the appellant did not speciiod that the appellant had been in custody. The appellant fically state that he had taken into account the 9 years pertold us that as at September 22, 2009 he had been in custody for 10 years and one month. We think that all these incidents ought to have been taken into account in assessing sentence. In view of the foregoing, we are satisfied that the appellant has been sufficiently punished. We therefore allow this appeal and reduce the sentence to the period that the appellant has already served. He is accordingly to be set free forthwith unless otherwise lawfully held.”

14. The Judiciary Sentencing Policy Guidelines also state as follows: -“The proviso to section 333(2) of the Criminal Procedure Code obligates the court to take into account the time already served in custody if the convicted person had been in custody during the trail. Failure to do so impacts on the overall period of detention which may result in an excessive punishment that is not proportional to the offence committed. In determining the period of imprisonment that should be served by an offender, the court must take into account the period in which the offender was held in custody during the trial.”

15. In conclusion, this court finds that in consideration of the application for review and in consideration of section 333 (2) of the CPC, 25-year imprisonment is to run from April 14, 2016 when the accused was first arraigned in court. The time already served in custody is to be deducted from the said sentence. Orders accordingly.

DATED, SIGNED AND DELIVERED IN OPEN COURT/ONLINE THROUGH MS TEAMS, THIS 26TH DAY OF JANUARY 2023HON. LADY JUSTICE A. ONG’INJOJUDGEIn the presence of: -Ogwel- Court AssistantMr. Ngiri for the Respondentapplicant present in person