[2022] KEHC 3090 (KLR)
The High Court held that, although the law prescribes a minimum sentence of 10 years for attempted defilement, recent jurisprudence (Muruatetu Case) has rendered mandatory minimum sentences unconstitutional as they interfere with judicial discretion. However, in this case, the appellant did not argue against the...
Source-derived case information.
- Citation
- [2022] KEHC 3090 (KLR)
- Parties
- Appellant: Sammy Erogo Lokitoi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nanyuki
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 94 of 2018
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal dismissed
- Judges
- HPG Waweru
- Legal Topics
- Sentencing Principles, Sexual Offences, Attempted Defilement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Sammy Erogo Lokitoi
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence of 10 years imprisonment for attempted defilement was lawful and appropriate.
- 2 Whether the court should interfere with the sentence imposed by the trial court.
Ratio Decidendi
The High Court held that, although the law prescribes a minimum sentence of 10 years for attempted defilement, recent jurisprudence (Muruatetu Case) has rendered mandatory minimum sentences unconstitutional as they interfere with judicial discretion. However, in this case, the appellant did not argue against the need for a custodial sentence but only sought a reduction. Given the circumstances and absence of mitigating factors such as remorse, the court found no justification to interfere with the sentence imposed by the trial court. The appeal against sentence was therefore dismissed.
Court Disposition
appeal dismissed
Orders
- The appeal against sentence is dismissed.
Full Case Text
Judgment text and source record
22 paragraphs
Lokitoi v Republic (Criminal Appeal 94 of 2018) [2022] KEHC 3090 (KLR) (30 June 2022) (Judgment)
Neutral citation: [2022] KEHC 3090 (KLR)
Republic of Kenya
In the High Court at Nanyuki
Criminal Appeal 94 of 2018
HPG Waweru, J
June 30, 2022
Between
Sammy Erogo Lokitoi
Appellant
and
Republic
Respondent
(Appeal from original Sentence in Nanyuki CM Sexual Offence Case No 16 of 2018 – N Thuku, PM)
Judgment
1. The Appellant herein, Sammy Erogo Lokitoi, was convicted after trial of attempted defilement contrary to section 9(1) & (2) of the Sexual Offences Act, 2006. It was alleged that on 23/02/2018 in Laikipia Central Sub-County of Laikipia County, he attempted to cause his penis to penetrate the vagina of one VNE, a child aged 11 years. On 09/10/2018 he was sentenced to 10 years imprisonment. He appealed against both conviction and sentence; however, he informed this court on two occasions that he wished to pursue only the appeal against sentence.
2. I have considered the submissions of both the Appellant and the learned counsel for the Respondent. The Appellant stated only that he was seeking forgiveness and leniency, and that he was now aged 38 years and married with children.
3. Learned counsel submitted that the sentence meted out was lawful and the mandatory minimum provided by law, and further, that it was well deserved given the circumstances of the case. He further submitted that at his sentencing the Appellant did not express any remorse.
4. Section 9(2) of the Act states –“A person who commits an offence of attempted defilement with a child is liable upon conviction to imprisonment for a term of not less than ten years.”That means that once the trial court decides that the offender deserves a custodial sentence, it must be a term of imprisonment of not less than ten years. However, this interference with the court’s sentencing discretion by the legislature is no longer tenable following the Supreme Court of Kenya’s declaration that section 204 of the Penal Codethat provided for mandatory death sentence for the offence of murder contrary to section 203 of the same Code was unconstitutional in the now notorious Muruatetu Case.
5. In the present case the Appellant truly deserved a custodial sentence, given the circumstances of the case. I have not heard him argue that he did not deserve a custodial sentence. What he is in fact seeking is a reduction of that sentence to a shorter term. I find no reason at all to interfere with that sentence in any way, given the circumstances of this case.
6. I find no merit in this appeal against sentence. The same is hereby dismissed. It is so ordered.
DATED AND SIGNED AT NANYUKI THIS 8TH DAY OF JUNE 2022H P G WAWERUJUDGEDELIVERED AT NANYUKI THIS 30TH DAY OF JUNE 2022