[2021] KEHC 3978 (KLR)
The High Court found that while the trial court had considered mitigating factors, the imposition of the minimum statutory sentence for indecent act was not mandatory in light of the Court of Appeal's reasoning in Evans Wanjala Wanyonyi v Republic, which applied the Supreme Court's decision in Francis Muruatetu &...
Source-derived case information.
- Citation
- [2021] KEHC 3978 (KLR)
- Parties
- Applicant: Kioko Musyoka; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Makueni
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 165 of 2020
- Procedural Posture
- Criminal Review Application / Ruling on Application for Review of Sentence
- Outcome
- application for review of sentence allowed; sentence reduced
- Judges
- GMA Dulu
- Legal Topics
- Sentencing Review, Mitigating Factors, Minimum Sentences, Custodial Sentence Calculation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kioko Musyoka
Applicant
Republic
Respondent
Procedural Posture
Criminal Review Application / Ruling on Application for Review of Sentence
Legal Issues
- 1 Whether the trial court failed to consider mitigating factors and the period spent in custody as required by section 333(2) of the Criminal Procedure Code.
- 2 Whether the minimum statutory sentence for indecent act is mandatory or discretionary in light of recent appellate jurisprudence.
- 3 Whether the sentence imposed was excessive given the circumstances of the offence.
Ratio Decidendi
The High Court found that while the trial court had considered mitigating factors, the imposition of the minimum statutory sentence for indecent act was not mandatory in light of the Court of Appeal's reasoning in Evans Wanjala Wanyonyi v Republic, which applied the Supreme Court's decision in Francis Muruatetu & Another v Republic. The court determined that the applicant's conduct, though serious, was less egregious and did not warrant the minimum sentence. The applicant's guilty plea, lack of prior offences, and the specific circumstances of the offence justified a reduction of the sentence to four years' imprisonment from the date of the original sentence.
Court Disposition
application for review of sentence allowed; sentence reduced
Orders
- The sentence imposed by the trial magistrate is set aside.
- The applicant will serve four (4) years imprisonment from the date he was sentenced by the trial court.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MAKUENI
HCCR REV. NO. 165 OF 2020
KIOKO MUSYOKA..................................................................................APPLICANT
VERSUS
REPUBLIC.............................................................................................RESPONDENT
RULING
1. This matter having been argued through written submissions by both the applicant and the Director of Public Prosecutions as an appeal, I note that it is not appeal but merely an application for review of sentence. I will thus treat it as an application for review of sentence.
2. The application was filed on 28th May 2020 under Article 21(1)(3), 22(1), 47(1), 165(3)(b)(d)(ii) of the Constitution, and section 333(2) of the Criminal Procedure Code (Cap. 75). The applicant while relying on the case of Evans Wanjala Wanyonyi –vs- Republic [2019] eKLR – Criminal Appeal No. 312 of 2019 - Eldoret Court of Appeal, asks that this court takes into account any mitigating factors relating to the matter and give him an appropriate reprieve (of the sentence imposed).
3. In particular, the applicant relies on section 333(2) of the Criminal Procedure Code, which required the trial court to take into account the period an accused person is held in custody during trial in sentencing, which according to him, was not taken into account by the trial court in sentencing him.
4. Having perused and considered the written submissions of both the appellant and the Director of Public Prosecutions, and the trial court proceedings, I note that the applicant pleaded guilty at the trial, after the first witness had tendered evidence in chief, which was a mitigating factor as the court did not have to proceed with the full trial. The Prosecutor also said that the applicant was a first offender. In his mitigation, the applicant said that he had not done a similar act before and asked for the court’s forgiveness. The court on its part, recorded that though it had considered the mitigating factors, the offence was serious and rampant in the area, and sentenced the applicant to 10 years imprisonment, the minimum statutory sentence for the offence of indecent act.
5. In my view, from the above position, it cannot be said from the record, that the court did not take into account the mitigating factors, including factoring the requirements of section 333(2) of the Criminal Procedure Code, before meting out sentence on the applicant herein.
6. However, the sentence imposed by the trial court was the minimum statutory sentence. With regard to imposition of minimum sentences, the Court of Appeal in the case of Evans Wanjala Wanyonyi –vs- Republic [2019] eKLR applied the reasoning in the Supreme Court decision in the case of Francis Muruatetu & Another –vs- Republic (2015) eKLR and treated the statutory minimum sentence as a discretionary sentence, whereby depending on the particular
circumstances of each case, the court could mete out less serve sentences.
7. Coming to our present case, from the evidence on record tendered by the victim (Pw1), and the facts summarised by the Prosecutor following the change of plea to guilty, it is clear that the applicant merely touched the breasts of the victim that night because he was drunk and was careless enough to think that such an act was a small matter. It is clear also that he had no further sexual intention, as he knew that other children were present in that same room. He thus appears to have been a careless and foolish adult, who overreached himself that night due to having taken alcohol.
8. In those circumstances, in my view, had there been no provision for a minimum statutory sentence, even with the seriousness of the offence the magistrate could certainly have meted out a less severe sentence than the set minimum sentence. On that account, I will thus interfere with the sentence imposed and order that the applicant will instead serve four (4) years imprisonment from the date he was sentenced by the trial court. I rely on the reasoning in the Court of Appeal decision in Evans Wanjala Wanyonyi –vs- Republic (2019) eKLR.
9. Consequently, I allow the application for review of sentence, set aside the sentence imposed by the trial magistrate, and order that instead the applicant will serve four (4) years imprisonment from the date he was sentenced by the trial court.
DELIVERED, SIGNED & DATED THIS 22ND DAY OF SEPTEMBER 2021, IN OPEN COURT AT MAKUENI.
..............................
GEORGE DULU
JUDGE