[2022] KEHC 11784 (KLR)

Kimutai v Republic (Criminal Petition E045 of 2021) [2022] KEHC 11784 (KLR) (14 July 2022) (Ruling)

Neutral citation: [2022] KEHC 11784 (KLR)

Republic of Kenya

In the High Court at Eldoret

Criminal Petition E045 of 2021

RN Nyakundi, J

July 14, 2022

Between

Stanley Kimutai

Petitioner

and

Republic

Respondent

Ruling

1. The Applicant moved this court vide an application dated 25/3/2021 seeking for orders of a rehearing and resentencing pursuant to the Supreme Court decision in the matter of Francis Karioko Muruatetu & Another vs Republic, Petition No 15 of 2015.

2. The applicant was convicted for the offence of defilement contrary to Section 8(1) as read with Section 8(2) of Sexual Offences Act and was sentenced to life imprisonment. He filed an appeal Eldoret HCCRA No. 87 of 2011which appeal was dismissed. The appellate court upheld both the sentence and conviction of the lower court. The Applicant being further aggrieved by the said outcome filed an appeal to the Court of Appeal being, Criminal Appeal No. 45 of 2012 which appeal was dismissed for lack of merit.

Applicant’s submissions 3. The Applicant’s case is that he was sentenced to life imprisonment on the basis of the mandatory sentence stipulated by Section 8 (1) of the Sexual Offences Act. That if the reasoning in the decision of the supreme court in Francis Karioko Muruatetu & Another vs Republic, Petition No 15 of 2015, was applied to Section 8(1) of the Sexual Offences Act then the said provision should be considered unconstitutional on the same basis. Further, placing reliance on the said decision the Applicant sought to set aside the sentence for life imprisonment and substitute it therefore with a sentence of (30) years imprisonment from the date of his sentence by the trial court.

4. In his submission the Applicant further stated that while in prison he had positively taken his imprisonment and had taken advantage of the opportunities available in prison to reform and gain skills which have helped him have a positive impact on society. The Applicant stated that he had taken a theological course and had acquired tailoring skills. The Applicant further submitted that he was a young man at the time when he committed the offence and had since paid the price for his actions taking into account the pre-trial period and the time of incarceration. Further the Applicant stated that he has had enough time to reflect on his life and the only remedy is in the form of re-sentencing. The Applicant contended that he is remorseful and has lost out on the prime years of his youth. The Applicant argued that he would be more beneficial to his family and the society while out of prison.

5. The state did not file any response or submissions in opposition to the Applicant’s review for sentence.

Background 6. In 2017, December when the Supreme court made the landmark judgment in the Muruatetu Case and declared the mandatory death sentence illegal, thousands of convicts have been using it to get lesser punishment. Many understood the judgment to mean that the principle outlawed all mandatory and minimum sentence provisions in the Criminal Penal Code, leading to filing of thousands of re-sentencing applications by prisoners including those serving life sentences.

7. The Supreme Court on July 6, 2021, clarified the import case of Francis Karioko Muruatetu & Another vs Republic directing that the principle should only apply to murder cases. Previously the principle in Muruatetu has been applied to cases under the Sexual Offences Act and other offences.

Determination 8. It is important to point out at the outset that a resentencing hearing or any other sentencing hearing for that matter is neither a hearing de novo nor an appeal. Such proceedings are undertaken on the understanding that conviction is not in issue. It therefore follows that in those proceedings the accused is not entitled to take up the issue of the propriety of his conviction. He must proceed on the understanding that the conviction was lawful and restrict himself to the sentence and address the court only on the principles guiding the imposition sentence and on the appropriate sentence in the circumstances. Similarly, the court can only refer to the evidence adduced in so far as it is relevant to the issue of sentencing but not with a view to making a determination as to whether the conviction was proper. While the court is entitled to refer to the evidence in order to determine whether there existed aggravating circumstances or otherwise for the purposing of meting the sentence, it is not proper for the court to set out to analyze the evidence as if it is meant to arrive at a decision on the guilt of the accused.

9. In this case it is important to note that the Applicant was not sentenced to death thus rendering the case of Francis Karioko Muruatetu and Another vs Republic(Supra) irrelevant in the circumstances of the case.

10. In Dismas Wafula Kilwake vs Republic [2018] eKLR, the Court of Appeal set out the factors to be considered in sentencing under Sexual Offences Act. It observed as follows: -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. 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.

11. In clarifying the import case ofFrancis Karioko Muruatetu & Another vs Republic (Supra). The Supreme Court gave the following guidelines: -i.The decision of Muruatetu and these guidelines apply only in respect to sentences of murder under Sections 203 and 204 of the Penal Code;ii.The Judiciary Sentencing Policy Guidelines to be revised in tandem with the new jurisprudence enunciated in Muruatetu;iii.All offenders who have been subject to the mandatory death penalty and desire to be heard on sentence will be entitled to re-sentencing hearing.iv.Where an appeal is pending before the Court of Appeal, the High Court will entertain an application for re-sentencing upon being satisfied that the appeal has been withdrawn.v.In re-sentencing hearing, the court must record the prosecution’s and the appellant’s submissions under Section 329 of the Criminal Procedure Code, as well as those of the victims before deciding on the suitable sentence.vi.An application for re-sentencing arising from a trial before the High Court can only be entertained by the High Court, which has jurisdiction to do so and not the subordinate court.vii.In re-hearing sentence for the charge of murder, both aggravating and mitigating factors such as the following, will guide the court;a.Age of the offender;b.Being a first offender;c.Whether the offender pleaded guilty;d.Character and record of the offender;e.Commission of the offence in response to gender-based violence;f.The manner in which the offence was committed on the victim;g.The physical and psychological effect of the offence on the victim’s family;h.Remorsefulness of the offender;i.The possibility of reform and social re-adaptation of the offender;j.Any other factor that the Court considers relevant.viii.Where the appellant has lodged an appeal against sentence alone, the appellate court will proceed to receive submissions on re-sentencing.ix.These guidelines will be followed by the High Court and the Court of Appeal in ongoing murder trials and appeals. They will also apply to sentences imposed under Section 204 of the Penal Code before the decision in Muruatetu.

12. In view of the fact that the Applicant had been charged and convicted of the offence of defilement and not murder, the issue of reviewing the sentence that was meted upon him as was set out in the case ofFrancis Karioko Muruatetu & Another vs Republic(Supra) did not arise herein and this court could not review the sentence of life imprisonment meted on him by both the High Court and the trial court.

13. The fact that the Applicant herein has submitted that he is remorseful and has since paid the price for offence he committed could not aid his case in any manner. This is in view of the guidelines that were issued by the Supreme Court on July 6, 2021.

14. With the foregoing in mind the Applicant’s prayer for review of the sentence is not meritorious and the same is hereby dismissed. Accordingly, the court upholds the conviction and sentence of the Applicant for the offence of defilement.

DATED, SIGNED AND DELIVERED AT ELDORET THIS 14TH DAY OF JULY, 2022. ............................R. NYAKUNDIJUDGEIn the presence of:-Mr MugunPetitioner