[2024] KEHC 10849 (KLR)

Lagat v Republic (Criminal Petition E048 of 2023) [2024] KEHC 10849 (KLR) (20 September 2024) (Judgment)

Neutral citation: [2024] KEHC 10849 (KLR)

Republic of Kenya

In the High Court at Eldoret

Criminal Petition E048 of 2023

JRA Wananda, J

September 20, 2024

Between

Nickson Kiprotich Lagat

Petitioner

and

Republic

Respondent

Judgment

1. The Petitioner has previously filed an almost similar Petition before this same Court seeking re-sentencing and which I dismissed. He has now returned to this same Court.

2. The background of this matter is that the Petitioner was charged in Eldoret Chief Magistrates Court Criminal Case No. 40 of 2016 with the offence of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act, No. 3 of 2006. The particulars were that on 8/01/2016, at [particulars withheld] in Eldoret West District within Uasin Gishu County, he intentionally and unlawfully caused his penis to penetrate the vagina of FC, a child aged 12 years old.

3. The Appellant was convicted and on 25/07/2017, sentenced to serve 20 years imprisonment. Aggrieved by the sentence and conviction, he lodged an appeal vide Eldoret High Court Criminal Appeal No. 80 of 2017. In the Judgment delivered on 19/10/201 by H.K. Kimondo J, the Appeal was dismissed in its entirety and the conviction affirmed.

4. The Petitioner then returned to this Court with Eldoret High Court Criminal Petition No. 87 of 2020. By that Petition, the Appellant sought for re-sentencing and among other grounds, he invoked the Supreme Court case of Francis Karioko Muruatetu and Another vs Republic (2017) eKLR in which mandatory or minimum sentences in murder cases were declared to be unconstitutional and inmates who had been sentenced on the basis of such mandatory or minimum sentences without consideration of their mitigation, allowed to petition the High Court for review of such sentences. As aforesaid, by my Judgment delivered on 7/07/2023, I dismissed the Petition as well.

5. The Petitioner has now yet again returned to this Court with the present Application, namely, the undated Notice of Motion filed on 27/8/2023 once again seeking review of the sentence. He does not however state any specific reason why the sentence should be reviewed. He simply states that he was a 1st offender and thus begs for leniency, that he is remorseful, repentant and reformed, and that the sentence was too harsh considering that the mitigating factors and circumstances.

6. Although I granted the Respondent the opportunity to file a response to the Petition by way of written Submissions, up to the time that I was concluding this Judgment, I had not come across any such Submissions.

Determination 7. The issue that arises for determination herein is “whether this Court should review the sentence of 20 years imprisonment”.

8. In determining this issue, I reiterate that after his Appeal was dismissed, the Petitioner returned to this Court with Eldoret High Criminal Petition No. 87 of 2020 seeking a similar relief as herein, namely, re-sentencing. In dismissing that Petition, in my Judgment delivered on 7/07/2023, this is what I stated:“b)Whether the sentence of 20 years imprisonment was too harsh 1. Regarding the alleged harshness of the sentence, the principles guiding interference with sentencing by the appellate Court were set out in the case of Bernard Kimani Gacheru vs. Republic [2002] eKLR, where it was held as follows:...........................

2. In this case, the Petitioner was convicted for the offence of defilement of a child aged 12 years, contrary to Section 8(1) as read with section 8(3) of the Sexual Offences Act and was sentenced to serve 20 years’ imprisonment. Section 8(3) provides as follows:“A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.

3. The use of the phrase “not less than” means that the trial Court was at liberty to impose a much higher sentence. It is therefore evident that the trial Magistrate possessed the legal discretion to impose the 20 years sentence.

4. I am aware that the logic of the now famous Supreme Court decision of Muruatetu 1 case (Francis Karioko Muruatetu & Another v Republic [2017] eKLR) is now more regularly being used to challenge the imposition of mandatory minimum sentences. However, I do not find that Muruatetu I applies in this case since nowhere did the trial Magistrate in his Judgment indicate that the 20 years prison term that he imposed was as a result of the mandatory minimum sentence stated in Section 8(3). Similarly, nowhere did he did he state that “his hands were tied” by the mandatory minimum sentence stipulated therein or that he had no room to exercise his discretion.

5. In any case, it is a matter of judicial notice that the Supreme Court has now clarified in its subsequent Muruatetu II decision (Francis Karioko Muruatetu & Another v Republic and Katiba Institute & 5 Others (Amicus Curiae) [2021] eKLR, that the holding referred to and made in Muruatetu I only applies to murder cases, and does not apply to sexual offences.

6. In this case, I have no material before me to conclude that the trial Court in exercising that discretion did not take into account relevant factors such as the gravity of the offence, the circumstances under which it was committed, or its implication on the victim and the Petitioner’s mitigation. The Petitioner has also not alleged that any impropriety or illegality was committed to warrant the revision by this Court of the sentence imposed.

7. The Petitioner wants the remainder of his sentence to be substituted with a non-custodial sentence owing to fact that he is now allegedly reformed and has gained new skills while in prison. According to the Sentencing Policy Guidelines, non-custodial sentence, except fines, is best suited for minor offences and prescribed limited length of sentences. The offence of defilement, and particularly of a child aged 12 years is quite grave and serious. Since the trial Magistrate had the discretion to impose a much longer sentence, I find that the Petitioner has already benefitted from the trial Court’s leniency in handing him a 20 years’ sentence. I am therefore not persuaded that he is deserving of a non-custodial sentence.

8. I am also not persuaded that the sentence imposed by the trial Court was manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor, or took into account some wrong material, or acted on a wrong principle.

9. In light of the foregoing observations, I find that the Application for review of sentence has no merit and the same is hereby declined.”

9. A casual consideration of the cited quotation, when compared with the grounds now presented by the Petitioner, will no doubt reveal that this Court had already conclusively dealt with and determined the issue of re-sentencing and expressly pronounced that the sentence of 20 years imposed by the trial Court was not harsh, did not breach any provisions of the law and was therefore merited and justified. Having pronounced itself as aforesaid, re-opening of the same issue will be a case of clear Res Judicata and cannot be entertained. As regards the issue of re-sentencing therefore, this Court is now functus officio.

Final Orders 10. In the premises, the undated Notice of Motion filed herein on 27/8/2023 is hereby dismissed.

DELIVERED, DATED AND SIGNED AT ELDORET THIS 20THDAY OF SEPTEMBER 2024…………………..WANANDA J. R. ANUROJUDGEDelivered in the presence of:Petitioner presentMr. Okaka for the StateCourt Assistant: Brian Kimathi