[2022] KEHC 16711 (KLR)

Lawrence v Republic (Miscellaneous Criminal Application E109 of 2022) [2022] KEHC 16711 (KLR) (1 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16711 (KLR)

Republic of Kenya

In the High Court at Mombasa

Miscellaneous Criminal Application E109 of 2022

A. Ong’injo, J

December 1, 2022

Between

Mbuvi Kabwere Lawrence

Applicant

and

Republic

Respondent

Ruling

1. The applicant Mbuvi Kabwere Lawrence was charged in Malindi Chief Magistrate’s Court Sexual Offence Case No 54 of 2010 with the offence of defilement contrary to section 8 (1) as read with section 8 (2) of the Sexual Offences Act No 3 of 2006. He was convicted and sentenced to life imprisonment.

2. He preferred an appeal to the High Court in Criminal Appeal No 95 of 2011 where the High Court upheld the conviction and sentence. The second appeal to Kenya Court of Appeal No 48 of 2017 also upheld the conviction and sentence.

3. The applicant now seeks to be considered for resentencing pursuant to the decision of Gikonyo, J in Misc Cr Application No E014 of 2021 High Court at NarokBaragoiRotiken v Republic where life sentence was substituted with 25 years imprisonment. He also relied on provisions of section 35 of the CPC.

4. This court has perused the copy of proceedings and judgment in the trial court and established the applicant was never released on bond. He did not secure surety of Kshs 100,000 and remained in custody throughout his trial from December 6, 2010 to September 1, 2011 when he was convicted and sentenced. This court also considered the persuasive decisions in Machakos petition of Phillip Mueke and Others v Republic and Mombasa Petition which dealt with mandatory minimum and maximum sentences in the Sexual Offences Act and made them unconstitutional.

5. Justice Odunga in Petition No E017 of 2021,Phillip Mueke Maingi & 5 Others v DPP & AG while following the principles set in Francis Karioko Muruatetu & Another v DPP & AG had 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 article 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 inDismas Wafula Kilwake v Republic [2019] eKLR …”

6. 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.

7. 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 inMusinda Mahupa v Republic (2020) eKLR where life imprisonment sentence was substituted with a determinate sentence

8. 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.”

9. Further to the above section, the court in Bethwel Wilson Kibor vs 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 specifically state that he had taken into account the 9 years period that the appellant had been in custody. The appellant told 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.”

10. 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 trial. 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.”

11. In conclusion, this court finds that in consideration of the emerging trends in jurisprudence, in order for sentencing or punishment to be effective, it ought to be determinate. In the circumstances and in consideration of the applicant’s mitigation, this court substitutes life sentence with 30 years jail term with effect from December 6, 2010.

DATED, SIGNED AND DELIVERED IN OPEN COURT/ONLINE THROUGH MS TEAMS,THIS 1ST DAY OF DECEMBER, 2022. HON. LADY JUSTICE A ONG’INJOJUDGEIn the presence of: -Ogwel- Court AssistantMs Kambaga for RespondentApplicant present in person