[2022] KEHC 13118 (KLR)

Maingi & 5 others v Director of Public Prosecutions & another (Petition E017 of 2021) [2022] KEHC 13118 (KLR) (17 May 2022) (Judgment)

Neutral citation: [2022] KEHC 13118 (KLR)

Republic of Kenya

In the High Court at Machakos

Petition E017 of 2021

GV Odunga, J

May 17, 2022

IN THE MATTER OF: ARTICLES 2 (1), 3 (1), 10 (2), 19, 22 (1), 25 (A), 27 (1) (2) (4), 28, 29 (A) (F), 50, 159 (2) (A), 165 (3) (B) (D) OF THE CONSTITUTION AND IN THE MATTER OF: THE SUPREME COURT DIRECTIVE PETITION NO. 15 & 16 (CONSOLIDATED) OF 2015 AND IN THE MATTER OF: INTERPRETATION OF THE MINIMUM-MAXIMUM MANDATORY PROVISIONS UNDER THE SEXUAL OFFENCES ACT NO.3 OF 2006 AND IN THE MATTER OF: SECTION 2016&329 OF THE CRIMINAL PROCEDURE CODE AND IN THE MATTER OF: KENYA JUDICIARY SENTENCING POLICY GUIDELINES AND IN THE MATTER OF: CRIMINAL APPEAL NO.82 OF 2015- YAWA NYWALE VS REPUBLIC

Between

Philip Mueke Maingi

1st Petitioner

Nathan Khaembe Makokha

2nd Petitioner

Peter Thanga Kago

3rd Petitioner

Simon Nganga Thengi

4th Petitioner

Mwangangi Muthui

5th Petitioner

Joseph Kamau Wakaba

6th Petitioner

and

Director of Public Prosecutions

1st Respondent

Attorney General

2nd Respondent

Judgment

Parties 1. The petitioners herein are convicts serving offences under the Sexual Offences Act.

2. The 1st respondent, is the Director of Public Prosecutions (“the DPP”) established under article 157 of the Constitution whose powers include instituting and undertaking criminal proceedings.

3. The 3rd respondent, the Attorney General is as the principal legal advisor to the Government of Kenya sued pursuant to the provisions of article 156 of the Constitution of Kenya.

Petitioners’ case 4. According to the petitioners, their grievance stems from the fact that the Sexual Offences Act prescribes minimum-maximum sentencing provisions which fetter the discretion of judges in imposing alternative sentences or order. This, it was pleaded, has resulted in teeming up large number of prisoners who are serving various minimum-maximum sentences under the Act.

5. It was pleaded that the court has severally voiced its concern on the impact of such sentencing provisions in that they curtail the sentencing discretion but also offend the constitutional dictates of fair trial and the benefit of equal treatment in law. It was argued that the mandatory-minimum sentences ought to be construed with such adaptation, qualifications and exceptions in order to be in line with the Constitution and the individual’s dignity.

6. It was pleaded that such sentence offend section 216 of the Criminal Procedure Code that permits the court, in passing sentence to receive such evidence as would inform itself as to the sentence to be passed.

7. In submissions, the petitioners contended that the 1st and 3rd petitioners are, courtesy of sponsorship by Justice Defenders, a non-governmental organization that offers sponsorship to prisoners to study law so that they can help their indigent colleagues in drafting of appeals, applications and submissions for courts and holistically help bridge access to justice which is hardly affordable to many of them, law graduates under the University of London law degree program, whilst the 2nd petitioner is in his final year.

8. The 4th, 5th and 6th petitioners, according to the submissions, were convicted under the minimum-mandatory sentencing provisions under the Sexual Offences Act no 3 of 2006 and they are a representation of all other prisoners inside Kenyan penal institutions who are serving this class of offences. This petition, according to the petitioners, is therefore before this court as a matter of public interest challenging the strict adherence of minimum-mandatory sentencing provisions envisaged therein and which according to the petitioners fetters the discretion of judges and magistrates on the appropriate sentence to mete out in individual cases.

9. It was submitted that the Sexual Offences Act was enacted in a bid to curb the social ills that were encumbering the society. It was appreciated that whilst it seems to have achieved its aims and restored sanity through issuing of hefty deterrent sentences within the various categories under the Act, it was submitted that it clipped away the court’s hands of deciding on any other sentence or order(s) to mete in regard to the unique circumstances presented.

10. The petitioners argued that time is nigh for the Kenyan Criminal Justice System to move away from the continual embracement of minimum-mandatory sentencing provisions so as to align the statutes in question with the Constitution of Kenya, 2010 which has been hailed as one of the most robust constitutions in the world. They pointed out fair trial and administrative action as some of the fundamental rights that have deeply been entrenched therein and hence Sexual Offences Act having been enacted in the year 2006 ought to be construed with all the alterations, adaptations, qualifications, and exceptions necessary to bring it into conformity with the Constitution.

11. The petitioners posited the following focal issues for determination by this esteemed court-a.Whether the court has the jurisdiction to entertain the present Petitionb.Whether the minimum-mandatory sentencing provisions under the Sexual Offences Act fetter the discretion of judges and magistrates in meting out sentencesc.Whether a move from this stringent adherence is the way to go in Kenya’s jurisprudence.

12. Regarding whether this court has the jurisdiction to hear and determine on the present petition before it, the petitioners cited article 165(3)(b) and (d) of the Constitution and the case of A O O & 6 others v Attorney General & Another [2017] eKLR.

13. On the basis of the above, it was submitted that this court is rightly clothed with the jurisdiction to determine whether the petition before it has raised issues that have threatened, denied, violated or infringed on fundamental rights and freedoms that are accrued to the petitioners herein.

14. They further relied on the directions of the Supreme Court given on July 6, 2021 in Francis Karioko Muruatetu & Another vs Republic [2017] eKLR (hereinafter referred to as Muruatetu 1) regarding the application of its decision which previously was seen to have not only annulled the mandatory nature of death sentence as envisaged in capital offences of murder and robbery with violence cases, but also that the same import was said to extend to other offences under the penal code and other statutory provisions like the Sexual Offences Act. It was noted that the apex Court made it clear that the import of its decision did not extend to other provisions of the law that prescribe mandatory or minimum sentences.

15. On the basis of the above binding directive, the petitioners submitted that this Petition presents an opportunity for all the parties involved in this matter to create a conversation on whether the continual sustenance of mandatory-minimum sentences are inconsistent with and or go against the letter and spirit of our Constitution. It was therefore their position that this court is properly seized of this matter and it does have the jurisdiction to hear and determine the issues in contention in which the petitioners posit is a threat to inherent fundamental rights and freedoms as enshrined under the Constitution.

16. Regarding the question whether the minimum-mandatory sentencing provisions under the Sexual Offences Act fetter the discretion of judges and magistrates in meting out sentences, the petitioners cited Pravin Bowry: What Penalty for Sex Offenders? ', Standard Digital, 14 September 2011) that mandatory minimum sentences are unjust and unfair and this is because in such instances, the discretion of the judges and magistrates has been taken away. They opined that the above sentiments apply to the Sexual Offences Act which was initially enacted so as to deal with the shortcomings that were envisaged in the now repealed sections of the Penal Code and which were seen to be too lenient in terms of punishment that was to be given to sexual offenders upon sentencing.

17. According to the petitioners, the overall purpose behind it all was to come up with an Act that would be able;-i.To address the seriousness of sexual offences; whose commission of the vice had become rampart in the country.ii.To promote respect of the law, and to provide just punishment for the offense.iii.To afford adequate deterrence measure to the commission of the vice, andiv.To protect the public from further crimes of the defendant in question.

18. According to the petitioners, whilst the Act seems to have achieved the goal of addressing the seriousness of the offence through issuing of hefty minimum-mandatory sentences, it achieved little or no effect in promoting deterrence, reducing recidivism and ensuring public safety of its citizens. Media highlights and reported statistics show more and more sexual violence incidents are reported every day in almost all parts of the country.

19. It was noted that currently, our penal institutions are teaming with offenders who are serving minimum-mandatory sentences as laid out under the Act and the numbers keep rising every time. This has strained budgetary allocations to the prisons department which has to spend millions of shillings in maintaining prisoners inside penal institutions, monies that could otherwise have been spent on other efficient needs.

20. According to the petitioners, this worrying state of affairs is not in Kenya alone and they cited. According to Mathew C Lamb’s seminal article, “A Return to Rehabilitation: Mandatory Minimum Sentencing in an Era of Mass Incarceration’’ in which the writer, while noting that overreliance by United States of America in imposing minimum mandatory sentences to curb drug crimes and controlled substance offenses led to skyrocketing of the prison population stated that; -“After the proliferation of these policies, most notably mandatory minimum sentences, the prison population skyrocketed. The total prison population increased by approximately 116% and the population of incarcerated drug offenders increased by approximately 532%. Such extreme incarceration based on mandatory minimum sentences for drug offences has neither deterred crime nor drug use. After the extensive use of mandatory minimum sentencing, the United States accounts for a quarter of the world’s prison population, but only five percent of the world’s total population.Through its steadfast commitment to the mandatory-minimum model, the war on Drugs inflicted steep fiscal and social costs on the American population. Federal expenditure for drug prohibition enforcement was estimated to be approximately $ 17. 1 billion in 2008. When aligned with an ever increasing prison population, these costs have led corrections spending to become the second- fastest growth area of state budgets, behind only Medicaid. The War on Drugs has similarly inflicted damaging social costs on poor and minority communities.’’

21. It was submitted that in a bid to undo the destructive effects of mandatory minimum sentencing and mass incarceration, Federal Sentencing Guidelines were introduced which gave the judges, prosecutors and defence attorneys room to advocate for or against any upward or downward adjustments to a sentence in accordance with aggravating or mitigating circumstances in the given cases.

22. The petitioners surmised that perhaps, it is with such hindsight that our criminal justice system introduced the Criminal Procedure Bench Book in February, 2018 whose sole aim is to be a tool that will ease up dispensation of justice to all the stakeholders involved. The petitioners also cited the Kenyan Judiciary Sentencing Policy Guidelines.

23. It was suggested that Kenya can borrow a leaf from the United Kingdom and condense the Sentencing Policy Guidelines into a statutory format to make it mandatory for judicial officers to take regard of all the necessary factors before meting out the sentence. In this regard section 142 of the UK Criminal Justice Act of 2003 was cited as providing that one of the objectives that needs to be taken into account is the objectives of the sentence, the seriousness and the circumstances of the offender.

24. They also cited the decision in the case of Yawa Nyale vs Republic [2018] eKLR. The petitioners also cited the case of S vs Malgas 2001 (2) SA 1222 SCA 1235, S vs Jansen 1999 (2) SACR 368 (C) AT 373 (G)-(H), S vs Toms 1990 (2) SA 802 (A) at 806(h)-807(b), Mithu vs State of Punjab [1983] 2 SCR 690 and Fatuma Hassan Salo vs Republic (2006), where Makhandia, J asserted that:“Sentencing is a matter for the discretion of the trial court. The discretion must however, be exercised judicially. The trial court must be guided by evidence and sound legal principle. It must take into account all relevant factors and exclude all extraneous or irrelevant factors.”

25. The said ‘sound legal principle’ were stated to include the circumstances of the offence, age of the offender, whether the accused is a first offender or repeat offender, and finally the paramount objective of whether the offender is rehabilitated.

26. In the petitioners’ view, it can be concluded that all of the above guiding cases and passages are opposed to mandatory minimum mandatory sentences for various reasons amongst them that (i) they do not take into account the overall objectives of punishment which is not only ensuring deterrence but also affording the reform and rehabilitation of the offender (ii) they disregard all the individual characteristics of the offence (iii) They do not appreciate the need of ensuring separation of powers between the legislature and the judiciary thereby reducing the latter to be mere rubber stamps and finally (iv) they do not take into regard the individual right to equality of treatment and dignity of the offender(s) thereby offending articles 27, 28, and 29 of the Constitution. This court was therefore called upon to be guided by the said decisions and dictum and to conclude that mandatory minimum sentences indeed fetter the discretion of judges and magistrates as they do not permit the Court to look at individual circumstances of each case.

27. The petitioners then dealt with the issue whether existing Court of Appeal jurisprudence impacts minimum mandatory sentencing in the Sexual Offences Act and that the preamble to the Sexual Offences Act, no 3 of 2006 (hereinafter “the Act”) provides that it “is an Act of Parliament to make provision about sexual offences, their definition, prevention and the protection of all persons from harm from unlawful sexual acts, and for connected purposes.” That the Act, it was noted, was assented into law on July 14, 2006 and became operational on July 21, 2006 is not in doubt hence it came into force during the era of Kenya’s 1963 Constitution.

28. It was submitted that Kenya birthed a new constitutional dispensation on August 27, 2010 which ushered in a new set of national values and principles, Bill of Rights and a new system of government. It is thus critical for this court to consider contextualizing the Sexual Offences Act under the former 1963 Constitution vis-à-vis the current constitutional dispensation. In this regard, the petitioners referred to the decision of Lenaola J (as he then was) in Samuel G Momanyi vs Attorney General & Another [2012] eKLR, Petition no 341 of 2011.

29. According to the petitioners, the Constitution of Kenya 2010 is praised for the emerging human rights jurisprudence based on the Bill of Rights, the fundamental rights in question in this case being the rights under, inter alia article 27 of the Constitution. Reference was made to the decision of the Supreme Court of India in Hamdard Dawakhana (Wakf) Lal Kuan, Delhi and Another vs Union of India and Others on 18 December, 1959 and based on the said decision, it was submitted that although the Sexual Offences Act, 2006 is lauded for bringing certainty and sanity to sexual offences’ sentencing the same is at variance with the aspirations of the 2010 Constitution which affirms in article 27 (1) that “every person is equal before the law and has the right to equal protection and equal benefit of the law.” Based on the foregoing, the court was urged to look at the mandatory minimum sentences imposed by the Sexual Offences Act of 2006 in light of article 27(1)(2)(6) of the 2010 Constitution and to invoke the spirit of transitional and consequential provisions thereof, in particular, part 2 of the sixth Schedule therein at clause 7 (1).

30. In the petitioners’ understanding, post August 27, 2010, all law in force pre- August 27, 2010 should be read with the modifications and necessary alterations to be in tandem with the new constitutional dispensation while keeping in mind that any law enacted by the legislature is deemed constitutional for all intent and purposes unless otherwise declared. Further, courts are further mandated to exercise judicial authority albeit restraining themselves from clothing themselves with legislative powers in their interpretation of the law. It was asserted that the court’s hands are tied while sentencing an accused person where the impugned Act prescribes a mandatory sentence and reliance was placed on the decision of the High Court in Simon Kipkurui Kimori vs Republic [2019] eKLR Criminal Appeal no 27 of 2018 which made reference to the Supreme Court’s finding in Francis Muruatetu & Another vs Republic [2017] eKLR which was relied upon by the Court of Appeal in Evans Wanjala Wanyonyi vs Republic [2019] eKLR, Criminal Appeal no 312 of 2018 in which the Court of Appeal set aside the appellant’s 20-year term of imprisonment who was convicted of the offence of defilement under the Sexual Offences Act.

31. In the same vein, the petitioners relied on the caution by the Court of Appeal in Dismas Wafula Kilwake vs Republic [2019] eKLR Criminal Appeal no 129 of 2014.

32. While appreciating that this court ought not to sit as a legislative arm of government and rewrite the law on sexual offences in Kenya, the court was implored to breathe life into the sentencing framework in the impugned sections of the Sexual Offences Act purposively in tandem with the spirit and letter of the 2010 Constitution generally, and article 50 (2) (q) therein specifically by allowing review of sentences under the impugned Act.

33. The court was urged to interpret the development of the law in a constitutional manner while appreciating the provisions of the Kenya Judiciary Sentencing Guidelines. That reasoning, according to the petitioners, was adopted by the Court of Appeal in Evans Wanjala Wanyonyi vs Republic [2019] eKLR, Criminal Appeal no 312 of 2018 and it was submitted that from the foregoing, it is clear that the Court of Appeal has already addressed itself to the issues at hand here, and that what is left is for clear, decisive declarations on the unconstitutionality of the impugned sections of the law.

34. According to the petitioners, Sexual Offences Act ought to be amended so that judges and magistrates can be given the discretion to decide on the appropriate punishment with regard to the unique circumstances of each case that is before them. Reliance was placed on Mwenda James Kironji’s thesis article titled, ‘’ The Fallacy of Mandatory Minimum Sentencing in Sexual Offences’’ where the author has taken critical background of mandatory minimum sentences in Kenya, why the Sexual Offences Act was created and finally why mandatory minimum sentences have failed to address the problem of sexual abuse as was intended. According to him the society is ignorant about minimum mandatory sentences and that’s why its prevalence has not gone down. He therefore advocates for both the government and the society as a whole to take a leading step in addressing this concern.

35. Additionally, the author has taken a look at the Kenyan judicial position on minimum mandatory sentences with comparison to other jurisdictions like United States of America, Canada, South Africa and Finland and suggests just like in those countries, that the government should reduce mandatory minimum sentences and legislate appropriate supportive guidelines for judicial discretion. He says; -“I would recommend that the government explores reducing the current Mandatory Minimum Sentences (MMS) and instead give a range within which a sentence can lie. This would create a hybrid sentencing regime. For example, defilement of a girl between 16-18 years can be no less than three and no more than fifteen years. Defilement of a girl between 12 and 15 can be no less than five and no more than twenty years. Defilement of a girl less than 11 years can be no less than seven years to life imprisonment. To supplement the reduction, appropriate sentencing guidelines should be legislated in the Sexual Offences Act to allow magistrates to derogate from mandatory minimum sentences based on clear criteria. For example if the sexual intercourse was consensual between an offender who is less than two years older than a girl, the court can derogate from the mandatory minimum sentence and order other sentences like probation. This could be applicable to the age group between 16-18 years. It may also encourage admissions by offenders and start processes of reconciliation or mediation between the parties for those who are willing to engage in such processes. The guidelines can also allow magistrates to give stiffer penalties than MMS if the circumstances necessitate. This would be equivalent to the strict South African model of having ‘unusual and exceptional circumstances’. For example use of victim impact statements, mediation and psychological reports to determine the status of the victim or the offenders. Defilement that results in permanent physical bodily or psychological harm can also constitute unusual and exceptional reasons.’’

36. It was noted that the Court of Appeal in Eliud Waweru Wambui vs Republic [2019] eKLR has also rallied the above call for legislative amendments to the Sexual Offences Act. The petitioners cited an article by Lumumba PLO, ‘Sentencing in Kenya: A search for the Judiciary’s Prevailing Policy and Philosophy and The Case for Reform’ Law Society of Kenya Journal, 2006, 117) in which he recommended for the establishment of a Sentencing Guidelines Authority of Kenya to achieve the following objectives: align the sentencing process to the 2010 Constitution, guide the process of determining sentences, link sentencing to its objectives, and address disparities in sentencing.

37. The petitioners urged this court to be persuaded that in light of the above guiding decisions and sentiments from aforementioned writers that indeed there is a constitutional vacuum and inadequacy within the current Sexual Offences Act. It is therefore high time that appropriate amendments to the Act can be done so that-i.The Sexual Offences Act can give life to the inherent right of the accused persons to a fair trial as enunciated under article 25 of the Constitution.ii.The Sexual Offences Act can give life to the inherent right of consideration of mitigating circumstances and other antecedents by accused persons before passing of a sentence as per article 50 of the Constitution.iii.The Sexual Offences Act can give life to the inherent right of all accused persons to equality of treatment and benefit of the law as enunciated under article 27 of the Constitution just like other laws e.g. penal code which has since mandatory death sentences unconstitutional in nature.iv.The Sexual Offences Act can give life to the inherent right of all accused persons to be treated with dignity that they deserve by judges and magistrates as enunciated under article 28 of the Constitution by giving them the discretion to give regard to unique individual circumstances of each case before arriving at a decision.v.The Sexual Offences Act will give life to the inherent right of all accused persons not to be subjected to treatment that amounts to cruel, inhuman or degrading manner as enunciated under article 29 of the Constitution. Punitive mandatory minimum sentences infringe on this right.

38. In the petitioners’ view, the above amendments in the legislation will also go a long way in aligning the Act in accordance with international law practices. According to article 15 of the UN recommendations on life imprisonment, it is questioned on the objective and purpose behind giving prolonged sentences of imprisonment including life imprisonment. It is concluded that such sentences are not compatible with the promotion of human dignity and the overall goal of justice which should be restorative.

39. It was the petitioners’ position that they have posited substantive arguments to show that the petition before this court deserves to be merited. They pleaded that the issues they have raised do not call for them to be the winners at the end of the day but rather it will be all the stakeholders involved in the criminal justice system and the country as a whole. They cited White J, Living speech: Resisting the empire of force, Princeton University Press, New Jersey 2006, 212 thus;“Although we live in a mass culture it is nonetheless possible for our leaders-in the judiciary, in the legislature, and in the [executive] – to speak as responsible human beings, explaining themselves in a kind of expression that does not trivialize them and us but does honour to both. It is imaginable that in their expressions they could manifest minds that are honestly engaged in thought and expression of a deep and living kind, not the manipulation of formulas.’’

40. According to them, we are the problem encumbering the Sexual Offences Act and we too are the solution to the unlocking of challenges we are facing in having it as part of our law.

41. They therefore prayed that:a.This hon court be pleased to issue a declaration that the minimum-mandatory sentencing provisions under the Sexual Offences Act are unconstitutional in so far as they infringe on the inherent right of every accused person to a fair trial as envisaged under article 25 (c) of the Constitution.b.This this court be pleased to issue a declaration that the minimum-mandatory sentencing provisions under the Sexual Offences Act are unconstitutional in so far as they infringe on the inherent right of every accused person to equality of treatment and benefit of the law as envisaged under article 27 (1) of the Constitution.c.This court be pleased to issue a declaration that the minimum-maximum sentencing provisions under the Sexual Offences Act are unconstitutional in so far as they infringe on the inherent right of every accused person to mitigate as envisaged under article 50 of the Constitution and as read with sections 216 and 329 of the Criminal Procedure Code.d.This court be pleased to issue a declaration that all offenders who have been charged under the various minimum-maximum sentencing provisions and had not been resentenced prior to the pronouncement of this judgement have a right to have their sentences reviewed.e.This court be pleased to give an order for return of the petitioners herein and all other affected petitioners in the same bracket as per prayer (d) above back to their respective trial courts for resentence hearings only.f.The court be pleased to make further such other order(s) as it shall deem just.

1st respondent’s case 42. In opposing the petition, the 1st respondent herein, the Director of Public Prosecutions, relied on the following grounds of opposition:1That the same is inept, frivolous and misconceived, hence lacking merit.2That the petitioners are litigious litigants filing different petitions before this honourable court, all aimed at solving the same issue.3That at the end of the day, this court will end up issuing “declarations” that are varying in nature relating to the same petitioners, hence making them unenforceable.4That therefore, this petition is a waste of this court’s precious time and the same ought to be dismissed.5That the petitioners cannot have two petitions before the same court seeking different declarations on the same cause of action.6That therefore, the 1st respondent prays that this petition be dismissed for being incompetent, misplaced and an abuse of the court process.

43. It was submitted on behalf of the 1st respondent that the Sexual Offence Act was enacted in a bid to curb the social ills that were encumbering the society since the then existing laws and penalties against sexual offenders were seen to be too low and lenient hence considered to be encouraging the vice. It was conceded that whilst it seems to have achieved its aims and restored sanity through issuing of hefty deterrent sentences within the various categories under the Act, it indeed clipped the courts hands of deciding on any other sentence or order(s) to mete in regard to the unique circumstances presented.

44. It was noted that sentences to be passed if one found guilty in our Sexual Offence Act are determined by the age of the victim at a 100% basis, courts cannot vary this sentence depending on the surrounding circumstances under which the offence was committed.

45. According to the 1st respondent, mandatory sentences operate on the principal that “where a certain offence is committed an automatic mandatory custodial sentence is justified” irrespective of the particular circumstances of the offender, the manner in which the offence was committed or the victim affected. To this extent, the 1st respondent agreed that this fetters the discretion of the judges and magistrates in meting out sentences.

46. It was appreciated that after the first decision of the Supreme Court in Francis Karioko Miruatetu & Another vs Republic, where the court held that section 204 of the Penal Code was inconsistent with the onstitution and invalid to the extent that it provided for the mandatory death sentence for murder, the courts applied the same dictum in offences under Sexual Offence Act wherein the Act provides for mandatory minimum sentence and went ahead to vary the sentences. It was noted that it was this application that that gave rise to the subsequent Supreme Court directions where the Supreme Court held that the issues which were presented to it in the first Muruatetu Case related to the offence of murder and therefore in respect of all other offences including Sexual Offence Act intending parties should file petitions to the High Court seeking for a similar declaration hence the instant petition.

47. According to the 1st respondent, the issue for consideration is whether the adherence of the minimum maximum sentencing provisions fetter the discretion of the courts to award appropriate sentences after considering the circumstances under which each case was committed, hence rendering it unconstitutional and in its view, the answer is in the affirmative. This position was based on the holding in Yawa Nyale vs Republic [2018] eKLR and agreed that the time to make the declaration is due.

48. It was however, the 1st respondent’s position that However, a court judgment cannot directly amend the statute and that any amendment to a statute can only be done by the legislature/parliament by way of introduction of a bill containing proposed amendments to the floor of the house after which the bill is taken through several readings before being presented for presidential assent.

2nd respondent’s case 49. On its part, the 2nd respondent relied on the following grounds of opposition;1. The petition is ambiguous, fatally defective, incompetent and untenable both in substance and form thus proper for dismissal2. The petition is fatally defective since it is not dated and signed also the affidavits in support are not signed, dated and commissioned hence they add no legal value to the petition.3. The petition herein is incompetent as it is premised and/or relies on the obiter dictum which is not binding as legal precedent.4. The law and judicial decisions do not operate retrospectively, they can only apply in future cases and therefore, if the petitioners’ appeals have already been heard then they are not entitled to file fresh applications/petitions for resentencing.5. Just as in civil law, the petitioners are estopped from reopening any criminal trial on the same facts therefore the petition herein is incompetent and ready for dismissal.6. The petition herein is misconceived for “demonizing”” section 8 of the Sexual Offences Act which is set out to address the unwarranted disparities in sentencing.7. The petition filed on August 10, 2021 is thus misconceived, without merit and an abuse of the court process and the same should be dismissed with costs.

50. It was submitted on behalf of the 2nd respondent that the Sexual Offences Act is the law governing sexual offences in Kenya and that it was enacted to delineate acts that qualify as sexual offences and to establish a means of punishing offenders in an effort to prevent such offences and to protect all persons from unlawful sexual acts. It was submitted that prior to the enactment of the Act, sexual offences laws related to rape and sexual violence were spread through the Penal Code, Criminal Procedure Rules, Criminal Amendment Act and Evidence Act. It was contended that the Sexual Offences Act no 3 of 2006 (hereinafter referred to as “The Act”) sought to consolidate laws relating to sexual offences and repealed most of the provisions in the existing laws including the Penal Code. According to the 2nd respondent, the passing of the Act was culminating of agitation and activism within civil society which was geared towards raising the alarm over the increase in sexual offences.

51. The 2nd respondent retraced the period between 1991 -2005 that saw an upsurge in the number of women and children reporting cases of sexual violence of diverse nature including rape which inspired advocacy for law to deal with the offenders. It was further submitted that the legal frame work on matters sexual offences was also of concern. For instance, in the Penal Code, offences against morality (the provision that dealt with sexual offences) carried lighter sentences than offences against the person which were treated as felonies. It was submitted that the contents of the Penal Code with respect to the sexual offences were also rather scanty and devoid of important details which serve to distinguish various sexual offences.

52. In the 2nd respondent’s submissions, due to the above mentioned shortcomings among others, it was realized that the provisions of the Penal Code did not comprehensively address sexual offences in Kenya. It was his view that the Act was a manifest improvement from the existing laws on sexual offences which were mainly contained in the Penal Code and that the purpose of the Sexual Offences Act no 3 of 2006 was:1. To address the rising problem of rape and sexual assaults in Kenya by introducing a comprehensive law reform with regard to rape and sexual assault.2. To introduce stiffer and enhanced penalties for offenders.3. To redefine sexual offences to include offences that had not been captured as such in the previous laws.4. To provide for medical services for rape victims.5. To provide for easier police reporting.6. To provide for methods of post-conviction monitoring of repeat offenders and sexual predators.

53. On whether the provisions of the Sexual Offences Act no 3 of 2006 on mandatory minimum sentences are unconstitutional, it was submitted that mandatory minimum sentences are compulsory sentences prescribed by law meted out for certain crimes and that they set out minimum jail term an offender has to serve in prison once they are found guilty of committing the crime the sentence is prescribed for by law. It was submitted that the mandatory minimum sentences reduce sentencing disparities and are justifiable because sometimes courts impose unreasonable or lenient sentences which do not deter commission of the particular offences. To the 2nd respondent, unjustifiable disparities impact upon public perception on the objectivity and impartiality of the judicial officers.

54. The 2nd respondent took the view that in any justice system, uniformity and certainty are fundamental; without them justice would not be seen to be done. He relied on Lowenthal G (1993) Mandatory sentencing laws; Undermining the effectiveness of determinate sentencing reform. California Law Reform 81,61-123 and submitted that in bid to address the unwarranted disparities in sentencing, the Sexual Offences Act set out minimum sentences.

55. It was disclosed that the Chief Justice also appointed a task force on sentencing whose mandate as set out in Kenya Gazette Notice dated June 16, 2014 was to;1. Review past sentencing patterns, policies and outcomes2. Report on how to reduce unwarranted disparity, increase certainty and uniformity and promote proportionality in sentencing.3. Create and roll out a plan for suggested intervention including educating and engaging members of the public and other stakeholders on sentencing system and its effectiveness.

56. It was submitted that among other recommendations, the task force found it necessary to retain the mandatory minimum sentences like for Sexual Offences Act and advised that courts be bound by those provisions and must not impose a sentence lower than prescribed or substitute sentence with fine. It was submitted that the mandatory minimum sentences as set out in the Sexual Offences Act are constitutional, necessary, reasonable and justifiable and so should this honourable court find.

57. Regarding the issue whether the provisions of the Sexual Offences Act no 3 of 2006 on mandatory minimum sentences violate the right to equal protection and benefit of the law provided for under article 27 of the Constitution, it was submitted that article 24(1) of the Constitution provides that a right or fundamental freedom in the bill of rights shall not be limited except by law and then only to the extent that the limitation is reasonable justifiable in an open and democratic society based on human dignity, equality and freedom and taking into account the relevant factors highlighted under this article. Article 25 on the other hand provides for specific rights and fundamental freedom that shall not be limited despite any other provisions of the constitution.

58. It was submitted that articles 24 and 25 of the Constitution yields the interpretation that the right to equal protection and benefit of the law are not absolute rights that cannot be limited pursuant to the provisions of article 25 of the Constitution but that the rights can be limited by application of the relevant laws provided that the limitation is reasonable and justifiable in an open and democratic society based on inter-alia human dignity, equality and freedom. In the 2nd respondent’s view, the limitation of the right to equal protection and benefit of the law due to the mandatory minimum sentences in the Sexual Offences Act is reasonable and justifiable. According to the 2nd respondent, the principle of equality was espoused by Khanna J in the Indian case ofState of Kerala & another vs N M Thomas & others1976 AIR 490, 1976 SCR (1) 906.

59. The 2nd respondent relied on the exposition on the principle of equality must be seen as the parity of treatment under parity of conditions. Therefore, the mandatory minimum provisions are reasonable, justifiable and are not in contravention of any provisions of the Constitution.

60. As to whether the provisions of the Sexual Offences Act No 3 of 2006 on mandatory minimum sentences violate the right to fair trial and to mitigate, the 2nd respondent cited the provisions of the 2016 Judiciary of Kenya Sentencing Policy Guidelines section 323 of the Criminal Procedure Code, article 25 of the Constitution and submitted that the provision for minimum sentence does not hinder the court from considering the submission on mitigation since the court still has lee way to impose any sentence over and above the minimum sentence. Therefore, the provisions for minimum sentences do not infringe on the right of the convicted person to fair trial and mitigate.

61. On whether the petitioners are entitled to the prayer for resentence hearing, it was submitted that the decision of the Supreme Court in Francis Karioko Muruatetu & another vs Republic:Katiba Institute & 5 others(amicus curie) [2021] eKLR opened a “pandora’s box” and courts have since been faced with many applications and petitions for review of sentences. However, the Muruatetu 1 decision was to benefit all those convicted of murder and sentenced to death under section 203 and 204 of the Penal Code and that this was clarified in Muruatetu 2 at paragraph 14.

62. It was the 2nd respondent’s contention that it is not practical for the petitioners to pray for a blanket order for themselves and all those convicted and sentenced under the Sexual Offences Act to be referred for resentence hearing. In his view, each petitioner and any other person aggrieved by the sentence passed in their case should approach the court appropriately to enable the court to make a decision based on the issues raised by the applicant and as framed by the court. It was noted that even the supreme court in Muruatetu 1 did not order all those sentenced under section 203 and 204 of the Penal Codeto be resentenced but ordered that they make their applications for review of sentences for the courts to make a determination depending on the issues in each case.

63. According to the 2nd respondent, the petition herein is therefore fatally defective, misconceived and incompetent therefore ready for dismissal.

64. While appreciating that the dictum in Muruatetu 1 was applied in Dismas Wafula Kilwake vs R (2018) eKLR, Evans Wanjala Wanyonyi vs R (2019) and Christopher Ochieng vs R (2018) under Sexual Offences Act wherein the Act provides for mandatory minimum sentences, the 2nd respondent submitted that the above decisions on sexual offences were given the ordinary common law mode which does not benefit all other people who could have benefitted from the new development in decisional law to approach the High Court afresh for review of sentence imposed. In this regard the 2nd respondent relied on the case of John Kagunda Kariuki vs R (2019) eKLR where J Ngugi, J stated that;“In other words persons whose appeals have been heard in the High court are not entitled to file fresh applications for resentencing in accordance with the new decisional law .To reach a different conclusion would lead to a ungovernable situation where all previously sentenced prisoners would seek review of their sentences .If the petitioners appeal have already been heard by the High Court they cannot return to the High Court seeking review of sentences, they can make an argument for reduced sentence at the Court of Appeal.”

65. It was noted that from the petition herein, we cannot tell the status of each of the petitioners appeals if any hence each petitioner should file their applications accordingly to enable courts make determination based on circumstanced and issues raised by the applicant.

66. It was concluded that the petition herein is fatally defective and ought to be dismissed for want of form since it is not dated or signed also the affidavits in support are not signed, dated and commissioned as the law requires. The 2nd respondent urged the court to dismiss the petition with costs for lack of merit.

Determination 67. I have considered this petition. It is clear that the elephant in the room is the constitutionality of the mandatory minimum sentences and whether the principles enunciated in Francis Karioko Muruatetu & another vs Republic [2017] eKLR ought to apply to such sentences.

68. On December 14, 2017, the Supreme Court handed down a landmark decision in Francis Karioko Muruatetu & another vs Republic [2017] eKLR. (hereinafter Muruatetu 1 for ease of reference). In that decision, the Supreme held, inter alia, as follows:“47Indeed the right to fair trial is not just a fundamental right. It is one of the inalienable rights enshrined in article 10 of the Universal Declaration of Human Rights, and in the same vein article 25(c) of the Constitution elevates it to a non-derogable right which cannot be limited or taken away from a litigant. The right to fair trial is one of the cornerstones of a just and democratic society, without which the rule of Law and public faith in the justice system would inevitably collapse.48Section 204 of the Penal Code deprives the court of the use of judicial discretion in a matter of life and death. Such law can only be regarded as harsh, unjust and unfair. The mandatory nature deprives the courts of their legitimate jurisdiction to exercise discretion not to impose the death sentence in appropriate cases. Where a court listens to mitigating circumstances but has, nonetheless, to impose a set sentence, the sentence imposed fails to conform to the tenets of fair trial that accrue to accused persons under articles 25 of the Constitution; an absolute right.49With regard to murder convicts, mitigation is an important facet of fair trial. In Woodson as cited above, the Supreme Court in striking down the mandatory death penalty for murder decried the failure to individualize an appropriate sentence to the relevant aspects of the character and record of each defendant, and consider appropriate mitigating factors. The court was of the view that a mandatory sentence treated the offenders as a faceless, undifferentiated mass to be subjected to the blind infliction of the penalty of death thereby dehumanizing them.50We consider Reyes and Woodson persuasive on the necessity of mitigation before imposing a death sentence for murder. We will add another perspective. Article 28 of the Constitution provides that every person has inherent dignity and the right to have that dignity protected. It is for this court to ensure that all persons enjoy the rights to dignity. Failing to allow a judge discretion to take into consideration the convicts’ mitigating circumstances, the diverse character of the convicts, and the circumstances of the crime, but instead subjecting them to the same (mandatory) sentence thereby treating them as an undifferentiated mass, violates their right to dignity.53If a judgedoes not have discretion to take into account mitigating circumstances it is possible to overlook some personal history and the circumstances of the offender which may make the sentence wholly disproportionate to the accused's criminal culpability. Further, imposing the death penalty on all individuals convicted of murder, despite the fact that the crime of murder can be committed with varying degrees of gravity and culpability fails to reflect the exceptional nature of the death penalty as a form of punishment. Consequently, failure to individualise the circumstances of an offence or offender may result in the undesirable effect of 'overpunishing' the convict.”[Emphasis mine].

69. It was the interpretation and application of this decision to matters other than murder cases that persuaded both the High Court and the Court of Appeal to apply what, in their view, was the ratio decidendi in the said Muruatetu case to other similarly placed offences with prima facie, mandatory death sentences or mandatory minimum sentence, particularly in robbery with violence and offences under the Sexual Offences Act. Having so applied the said courts similarly found that such mandatory sentences are unconstitutional in so far as they deprive the courts of the discretion to mete sentences other than the prescribed ones.

70. However, on July 6, 2021, the Supreme Court issued directions in the same matter (hereinafter referred to as Muruatetu 2) in which it expressed itself, inter alia as follows:“9In addition, there is no harmony in the revised sentences by the courts. The sentences which have been imposed after re-sentencing hearing range from commutation to the period served, probation, reduction of sentences to some specific period, or the preservation of the maximum sentences.10It has been argued in justifying this state of affairs, that, by paragraph 48 of the judgment in this matter, or indeed the spirit of the judgment as a whole, the court has outlawed all mandatory and minimum sentence provisions; and that although Muruatetu specifically dealt with the mandatory death sentence in respect of murder, the decision's expansive reasoning can be applied to other offenses that prescribe mandatory or minimum sentences. Far from it. In that paragraph, we stated categorically that;“[48] Section 204 of the Penal Code deprives the court of the use of judicial discretion in a matter of life and death. Such law can only be regarded as harsh, unjust and unfair. The mandatory nature deprives the courts of their legitimate jurisdiction to exercise discretion not to impose the death sentence in appropriate cases. Where a court listens to mitigating circumstances but has, nonetheless, to impose a set sentence, the sentence imposed fails to conform to the tenets of fair trial that accrue to accused persons under articles 25 ofthe Constitution; an absolute right”. Reading this paragraph and the judgment as a whole, at no point is reference made to any provision of any other statute. The reference throughout the judgment is only made to section 204 of the Penal Code and it is the mandatory nature of death sentence under that section that was said to deprive the “courts of their legitimate jurisdiction to exercise discretion not to impose the death sentence in appropriate cases”.11The ratio decidendi in the decision was summarized as follows;“69. Consequently, we find that section 204 of the Penal Code is inconsistent with the Constitution and invalid to the extent that it provides for the mandatory death sentence for murder. For the avoidance of doubt, this decision does not outlaw the death penalty, which is still applicable as a discretionary maximum punishment”.We therefore reiterate that, this court’s decision in Muruatetu, did not invalidate mandatory sentences or minimum sentences in the Penal Code, the Sexual Offences Act or any other statute.

71. The Supreme Court continued:“14It should be apparent from the foregoing that Muruatetu cannot be the authority for stating that all provisions of the law prescribing mandatory or minimum sentences are inconsistent with the Constitution. It bears restating that it was a decision involving the two petitioners who approached the court for specific reliefs. The ultimate determination was confined to the issues presented by the petitioners, and as framed by the court.15To clear the confusion that exists with regard to the mandatory death sentence in offences other than murder, we direct in respect of other capital offences such as treason under section 40 (3), robbery with violence under section 296 (2), and attempted robbery with violence under section 297 (2) of the Penal Code, that a challenge on the constitutional validity of the mandatory death penalty in such cases should be properly filed, presented, and fully argued before the High Court and escalated to the Court of Appeal, if necessary, at which a similar outcome as that in this case may be reached. Muruatetu as it now stands cannot directly be applicable to those cases.

72. The Supreme Court concluded that: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.……….viii.Where the appellant has lodged an appeal against sentence alone, the appellate court will proceed to receive submissions on resentencing.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.

73. My understanding of the Muruatetu 2 is that Muruatetu 1 was only dealing with the offence of murder and not any other offence. Therefore, as regards the sentences in respect of other offences in which mandatory sentences are imposed, parties are at liberty to their constitutional validity by properly filing, presenting, and fully arguing before this and escalating to the Court of Appeal, if necessary, at which a similar outcome as that in this case may be reached. In other words, nothing bars this Court, upon hearing such challenges from applying the reasoning in Muruatetu 1 and arriving at the same or different determinations.

74. That brings me to the issue of circumstances under which a principle set out in a previous case is applicable to a subsequent case. In order for this to happen, the Court hearing the subsequent matter must hew out what is known in legal parlance was ratio decidendi of the previous case as contradistinguished from obiter dicta.

75. Broadly speaking, when a court delivers judgement in a case it outlines the facts which it finds have been proved on the evidence. Then it applies the law to those facts and arrives at a decision, for which it gives the reason. It is that reason that constitute the ratio decidendi of that case. Such reason is not the law that is getting attracted in the contemporary case but is the necessary notion which helps the court arrive at a particular decision. It is this part of the precedent which has to be followed by the courts in subsequent decisions but not the general observations of the court. Ratio decidendi literally means ‘reason for deciding’. In the judicial context, it is the reason which is cited for arriving at a decision in a case.

76. As the facts may not be similar in other cases, the observations pertinent to the facts made by the court cannot be binding in the other cases though the similar laws are attracted. But the reasons for arriving at a decision are binding. In case there are multiple reasons for deciding in a manner, all those reasons will be binding in the subsequent cases. However, it is also possible for judges constituting a bench to agree on the judgement or final order without necessarily agreeing on the ratio for arriving at such a decision. In that case, such judgment or order does not carry an obligation to be followed as a precedent. In other words, any of the decisions of a court which is binding as a precedent is not because of the end result or the order of that decision but is based on the reasons and principles referred to in such a decision. The ratio in deciding a case would evolve from the interpretation of a statute, principles of natural justice, and the common law principles.

77. It is necessary however, to distinguish between the general principle of a case, which constitutes the ratio decidendi, and the concrete decision. It therefore follows that the reason which the judge gives for his decision is not binding and may not correctly represent the principle. While the reason may be found to have been wrong or based on a misunderstanding of legal history, the principles established by the case would still be valid and binding. Again, there may be cases in which no reasons are given, but this does not affect their authority as a precedent. In this regard, Harvey at page 609 gives the example of the case of Priestly vs Fowler which first laid down the doctrine of common employment, a case which according to Harvey, was still law in England despite its limited effect in light of the enactment of the Employers Liability Act of 1880 and notwithstanding the fact that the two reasons on which Lord Abinger based his decision were probably incorrect. It therefore follows that the ratio of case may not necessarily be the same as what the judge who delivered the decision had in mind when he did so. The ratio is culled from the reason for his decision by the judges who interact with the said decision subsequently.

78. On the other hand, it is not the rule of law set forth by the court, or the rule enunciated, which necessarily constitutes the principle of the case. This is so because there may be no rule of law pronounced in the judgment, or the rule when stated may be too wide or too narrow. In the appellate courts the various judges may set forth different rules of law, but nevertheless each of these cases must contain a principle which is binding in future cases.

79. It must be remembered that Sadly, judges do not explicitly point out in their judgments when something is the ratio decidendi thus making it difficult to tell the ratio from the obiter statements. The reason is that judges in arriving at their decisions do not set out to create new rules or principles.

80. One of the guiding principles in determining ratio decidendi is to determine whether a particular statement made in the judgement was necessary for the outcome. In other words, had the judge decided this legal principle differently, would they have reached the same conclusion? If the judge needed to rely on that particular legal principle to reach that conclusion, the statement is ratio decidendi. Ratio decidendi is said to be the principle or principles deduced from authority in which court reached is decision or negatively, the principle without which the court would not have reached the decision that it did reach.

81. Having extensively dealt with ratio decidendi, to complete this part of the discourse it is only prudent that something be said about the opposite. Obiter dictum, on the other hand, is the opinion expressed by the judge in the court or during pronouncement of judgment which does not have any importance in the decision. These are the incidental remarks made by the court while dealing with the actual conflict between parties but do not constitute important constituents to arrive at a decision. While they may not be binding, they may carry a considerable weightage, depending on the kind of dictum given by the court and the hierarchy of the Court in the judicial system. If the dictum is a casual remark by the court, it does not have any effect on the parties or the subsequent cases. In another scenario, certain obiter dicta have recommendatory or persuasive value but do not bind anyone.

82. According to Goodhart, ‘Determining the Ratio Decidendi of a Case’ 40 Yale Law Journal 161 (1930) which is reproduced at page 608 of An Introduction to the Legal System in East Africa by Prof. William Burnet Harvey:“In discussing the nature of a precedent in English law, Sir John Salmond says:‘A precedent is therefore a judicial decision which contains in itself a principle. The underlying principle which thus forms its authoritative element is often termed the ratio decidendi. The concrete decision is binding between the parties to it, but it is the abstract ratio decidendi which alone has the force of law as regards the world at large.’The rule is stated as follows by Professor John Chipman Gray:‘It must be observed that at common law not every opinion expressed by a judge forms a Judicial Precedent. Inorde rthat an opinion may have the weight of a precedent, two things must concur: it must be, in the first place, an opinion given by a judge, and, in the second place, it must be an opinion the formation of which is necessary for the decision of a particular case; in other words, it must not be obiter dictum.’

83. Having set out the two principles, I now proceed to find out how they apply to Muruatetu 1. Muruatetu 1, from the introduction of the judgement, raised a fundamental legal issue that, according to the Court, has engaged many global jurisdictions in seemingly unending controversy: whether or not the mandatory death penalty is unconstitutional. That in my view was what the Court set out to determine. This issue was eventually determined in the orders that the Court made which inter alia, were that the mandatory nature of the death sentence as provided for under section 204 of the Penal Code is unconstitutional. The Court was however quick to point out that that holding does not disturb the validity of the death sentence as contemplated under article 26(3) ofthe Constitution.

84. Based on the discourse hereinabove, it is clear that neither the introduction nor the order constitute the reason for deciding in the manner the Court did. Similarly, the ratio decidendi cannot be the legal provisions relied upon by the Court which were Articles 25 and 28 of the Constitution. In other words, they do not constitute the ratio decidendi of the case.

85. In my respectful view, the ratio decidendi of the case (the reasons for deciding) appears in paragraphs 47 to 53 which I have extensively set out hereinabove. In summary the reason for the decision was that failing to allow a Judge discretion to take into consideration the convicts’ mitigating circumstances, the diverse character of the convicts, and the circumstances of the crime, but instead subjecting them to the same (mandatory) sentence thereby treating them as an undifferentiated mass, and subjecting them to the sentence wholly disproportionate to the accused's criminal culpability, violates their right to dignity.

86. This finding was arrived at by applying the relevant provisions of the Constitution to the facts of that case. Upon that reasoning the Court made a finding that mandatory death sentence in murder cases is unconstitutional. In my respectful view, therefore it is neither the applicable rules or the final finding that constitute ratio decidendi but the reason for the finding that a legislation that purports to deprive the Court of its discretion, in imposing a sentence, to take into account, inter alia, the convicts’ mitigating circumstances, the diverse character of the convicts, and the circumstances of the crime is liable to be struck out as being unconstitutional, not because the sentence prescribed is necessarily unconstitutional, but due to the fact that it does not permit the court to consider a range of other sentences appropriate to the case. In simple terms, the Supreme Court in Muruatetu 1 did not outlaw death sentence but simply said that as a mandatory sentence, it was unconstitutional.

87. That now brings me to mandatory minimum sentences. When one talks of mandatory minimum sentences, what immediately comes to one’s mind are the sentence imposed under the Sexual Offences Act, though the matter ought not to be restricted to those offences. However, in this petition, the petitioners stated that they were all convicts serving sentences prescribed under the Sexual Offences Act.

88. A study of the offences under the said Act reveals that the Act prescribes minimum mandatory sentences in several sections.

89. In determining the relevance and constitutionality or otherwise of such sentences, and statutes in general, it is my view that the current constitutional dispensation particularly article27 of the Constitution ought to be taken into account. Clause 7 of the transitional and consequential provisions thereof provide as follows:All law in force immediately before the effective date continues in force and shall be construed with the alterations, adaptations, qualifications and exceptions necessary to bring it into conformity with conformity with this Constitution.

90. It is clear that minimum mandatory sentences, prima facie, do not permit the Court to consider the peculiar circumstances of the case in order to arrive at an appropriate sentence informed by those circumstances as the Court is deprived of the discretion to consider whether a lesser punishment than the minimum prescribed, would be more appropriate in the circumstances. I am however, alive to the provisions of Section 4(1) and (2) of the Probation of Offenders Act, Cap 64 Laws of Kenya which provides as follows:(1)Where a person is charged with an offence which is triable by a subordinate court and the court thinks that the charge is proved but is of the opinion that, having regard to youth, character, antecedents, home surroundings, health or mental condition of the offender, or to the nature of the offence, or to any extenuating circumstances in which the offence was committed, it is expedient to release the offender on probation, the court may—(a)convict the offender and make a probation order; or(b)without proceeding to conviction, make a probation order, and in either case may require the offender to enter into a recognisance, with or without sureties, in such sum as the court may deem fit.(2)Where any person is convicted of an offence by the High Court and the court is of the opinion that, having regard to the youth, character, antecedents, home surroundings. health or mental condition of the offender, or to the nature of the offence, or to any extenuating circumstances in which, the offence was committed, it is expedient to release the offender on probation, the court may, in lieu of sentencing him to any punishment, make a probation order, and may require the offender to enter into a recognisance, with or without sureties, in such sum as the court may deem fit.

91. It is arguable whether in light of the foregoing, sexual offenders qualify to be considered for probation. If they do, then the proponents of minimum mandatory sentences may find it difficult to justify such sentences on the ground that sometimes courts impose unreasonable or lenient sentences which do not deter commission of the particular offences. It is however my view that such reasoning may be taken to mean that there is lack of faith in the judicial system to mete appropriate sentences, a proposition that is dangerous in a system that believes in the rule of law. The fact that a trial court may err in imposition of sentences ought not to be a reason for taking away judicial discretion and handing it over to the legislature. The judicial system provides for appellate process where parties are dissatisfied with decisions of the lower court. To remove from the Courts, the power to mete appropriate sentences merely because the lower courts or any other court for that matter are not imposing “sensible sentences” in my view amounts to judicial coup. All the tiers of the judiciary cannot be said to be wrong and if they arrive at the same decision then everyone must live with that decision however unpalatable it might appear since according to the law, that is the right decision.

92. That sentencing is a matter within the discretion of the trial court is not in doubt. That position is well recognised in many jurisdictions. In S vs Mchunu andanother (AR24/11) [2012] ZAKZPHC 6, Kwa Zulu Natal High Court held that:“It is trite law that the issue of sentencing is one which vests a discretion in the trial court. The trial court considers what a fair and appropriate sentence should be. The purpose behind a sentence was set out in S v Scott-Crossley 2008 (1) SACR 223 (SCA) at para 35:‘Plainly any sentence imposed must have deterrent and retributive force. But of course one must not sacrifice an accused person on the altar of deterrence. Whilst deterrence and retribution are legitimate elements of punishments, they are not the only ones, or for that matter, even the over-riding ones.’The judgment continues:‘. . . [i]t is true that it is in the interests of justice that crime should be punished. However, punishment that is excessive serves neither the interests of justice nor those of society.’

93. The Courts have always frowned on mandatory sentences that place a limitation judicial discretion. In S vs. Toms 1990 (2) SA 802 (A) at 806(h)-807(b), the South African Court of Appeal (Corbett, CJ) held that:“the infliction of punishment is a matter for the discretion of the trial Court. Mandatory sentences reduce the Court’s normal sentencing function to the level of a rubberstamp. The imposition of mandatory sentences by the Legislature has always been considered an undesirable intrusion upon the sentencing function of the Court. A provision which reduces the Court to a mere rubberstamp, is wholly repugnant.”

94. In S vs Mofokeng 1999(1) SACR 502 (W) at 506 (d), Stegmann, J opined that:“For the Legislature to have imposed minimum sentences severely curtailing the discretion of the Courts, offends against the fundamental constitutional principles of separation of powers of the Legislature and the Judiciary. It tends to undermine the independence of the courts and to make them mere cat’s paws for the implementation by the legislature of its own inflexible penal policy that is capable of operating with serious injustice in particular cases.”

95. Similarly, in S vs Jansen 1999 (2) SACR 368 (C) at 373 (g)-(h), Davis J held that:“mandatory minimum sentences disregard all individual characteristics and each case is treated in a factual vacuum, leaving no room for an examination of the prospect of rehabilitation and of the incarceration method to be adopted. Such a system can result in a gross disregard of the right to dignity of the accused.”

96. In my view the opinion of the Supreme Court with respect to mandatory sentences apply with equal force to minimum sentences or non-optional sentences. My view is in fact supported by the Kenya Judiciary Sentencing Policy Guidelines where it is appreciated that:Whereas mandatory and minimum sentences reduce sentencing disparities, they however fetter the discretion of courts, sometimes resulting in grave injustice particularly for juvenile offenders.

97. Mine is not a lone voice crying in the wilderness. The Court of Appeal in Christopher Ochieng vs Republic [2018] eKLR, the Court of Appeal stated that:“Arising from the decision in Francis Karioko Muruatetu & Another vs Republic SC Pet. No. 16 of 2015 where the Supreme Court held that the mandatory death sentence prescribed or the offence of murder by section 204 of the Penal Code was unconstitutional…In this case the appellant was sentenced to life imprisonment on the basis of the mandatory sentence stipulated by section 8 (1) of the Sexual Offences Act, and if the reasoning in the Supreme Court case was applied to this provision, it too should be considered unconstitutional on the same basis…Needless to say, pursuant to the Supreme Court’s decision in Francis Karioko Muruatetu & Another vs Republic (supra), we would set aside the sentence for life imposed and substitute it therefor with a sentence of 30 years imprisonment from the date of sentence by the trial court.”

98. In Jared Koita Injiri vs Republic[2019] eKLR the same expressed itself as hereunder:“In this case the appellant was sentenced to life imprisonment on the basis of the mandatory sentence stipulated by section 8 (1) of the Sexual Offences Act, and if the reasoning in the Supreme Court case was applied to this provision, it too should be considered unconstitutional on the same basis. The appellant was provided an opportunity to mitigate in the trial court where it was stated that he was a first offender. He pleaded for leniency. However, it cannot be overlooked that the appellant committed a heinous crime, and occasioned severe trauma and suffering to a young girl. His actions have demonstrated that around him, young and vulnerable children, like the complainant could be in jeopardy. Needless to say, pursuant to the Supreme Court decision in Francis Karioko Muruatetu & Another vs Republic (supra), we would set aside the sentence for life imposed and substitute it therefore with a sentence of 30 years from the date of sentence by the trial court.”

99. That was the Court of Appeal’s position in Dismas Wafula Kilwake vs Republic [2019] eKLR in which it expressed itself as hereunder:“Here at home in a judgment rendered on 14th December 2017 in Francis Karioko Muruatetu & Another v. Republic, SC Pet No 16 of 2015, the Supreme Court concluded that the mandatory death sentence prescribed for the offence of murder by section 204 of the Penal Code is unconstitutional. While appreciate that the decision had nothing to do with the Sexual Offences Act, we cite it because of the pertinent observations that the apex Court made regarding mandatory sentences. In principle, we are persuaded that there is no rational reason why the reasoning of the Supreme Court, which holds that the mandatory death sentence is unconstitutional for depriving the courts discretion to impose an appropriate sentence depending on the circumstances of each case, should not apply to the provisions of the Sexual Offences Act, which do exactly the same thing.”

100. The Court continued:“The Sentencing Policy Guidelines require the court, in sentencing an offender to a non-custodial sentence to take into account both aggravating and mitigating factors. The aggravating factors include use of a weapon to frighten or injure the victim, use of violence, the number of victims involved in the offence, the physical and psychological effect of the offence on the victim, whether the offence was committed by an individual or a gang, and the previous convictions of the offender. Among the mitigating factors are provocation, offer of restitution, the age of the offender, the level of harm or damage inflicted, the role played by the offender in the commission of the offence and whether the offender is remorseful.”

101. In the said case, the Court cited State vs Tom, State v Bruce (1990) SA 802 (A), in which Smalberger, JA, writing for the majority of Supreme Court of South Africa, made the following pertinent observations about sentencing in general and mandatory sentences in particular:“The first principle is that the infliction of punishment is pre-eminently a matter for the discretion of the trial court ... That courts should, as far as possible, have an unfettered discretion in relation to sentence is a cherished principle which calls for constant recognition. Such discretion permits of balanced and fair sentencing, which is a hallmark of enlightened criminal justice. The second, and somewhat related principle, is that of the individualization of punishment, which requires proper consideration of the individual circumstances of each accused person. This principle too is firmly entrenched in our law... A mandatory sentence runs counter to these principles. (I use the term “mandatory sentence” in the sense of a sentence prescribed by the legislature which leaves the court with no discretion at all -either in respect of the kind of sentence to be imposed or, in the case of imprisonment, the period thereof.) It reduces the court's normal sentencing function to the level of a rubber stamp. It negates the ideal of individualization. The morally just and the morally reprehensible are treated alike. Extenuating and aggravating factors both count for nothing. No consideration, no matter how valid or compelling, can affect the question of sentence... Harsh and inequitable results inevitably flow from such a situation. Consequently, judicial policy is opposed to mandatory sentences...as they are detrimental to the proper administration of justice and the image and standing of the courts.”

102. The Court also cited Mithu Singh vs State of Punjab, 1983 AIR 473, in which the Supreme Court of India grappled with the same issue when the constitutionality of a provision of law prescribing a mandatory sentence of death was challenged. In holding that the provision was unconstitutional, the Court stated as follows:“...a provision of law which deprives the court of the use of its wise and beneficent discretion in a matter of life and death, without regard to the circumstances in which the offence was committed and, therefore, without regard to the gravity of the offence, cannot but be regarded as harsh, unjust and unfair. It has to be remembered that the measure of punishment for an offence is not afforded by the label which that offence bears, as for example ‘Theft, Breach of Trust’ or ‘Murder’. The gravity of the offence furnishes the guideline for punishment and one cannot determine how grave the offence is without having regard to the circumstances in which it was committed, its motivation and its repercussions. The legislature cannot make relevant circumstances irrelevant, deprive the courts of their legitimate jurisdiction to exercise their discretion not to impose the death sentence in appropriate cases, compel them to shut their eyes to mitigating circumstances and inflict upon them the dubious and unconscionable duty of imposing a preordained sentence of death. Equity and good conscience are the hall-marks of justice. The mandatory sentence of death prescribed by section 303, with no discretion left to the court to have regard to the circumstances which led to the commission of the crime, is a relic of ancient history. In the times in which we live, that is the lawless law of military regimes. We, the people of India, are pledged to a different set of values. For us, law ceases to have respect and relevance when it compels the dispensers of justice to deliver blind verdicts by decreeing that no matter what the circumstances of the crime, the criminal shall be hanged by the neck until he is dead.”

103. In arriving at its decision the Court was similarly guided by the decision of the Constitutional Court of Uganda in Susan Kigula & 417 Others vs Attorney General, Const App No 3 of 2006 that it is the duty of the courts to pass appropriate sentences on persons convicted of crime and that sentencing is an exercise of judicial function rather than of legislative function and concluded that:“The legislature has all the powers to make laws including prescribing sentences. But it is the duty of the courts to ensure that the sentences so prescribed are imposed in accordance with the Constitution.”

104. My position in this matter is reinforced by the decision of the Court of Appeal in Daniel Kipkosgei Letting vs Republic[2021] eKLR where, the Court while citing with approval its decision in Jared Koita Injiri v Republic[2019] eKLR and guided by the sentiments of the Supreme Court in Muruatetu 1 observed that:“the purpose and objectives of sentencing as stated in the Judiciary Sentencing policy should be commensurate and proportionate to the crime committed and the manner in which it was committed. The sentencing should be one that meets the end of justice and ensures that the principles of proportionality, deterrence and rehabilitation are adhered to. In this regard we think that the complaint that the sentence imposed was harsh and excessive is valid though it was the only sentence available then. We are therefore inclined to interfere with it. We therefore set aside the sentence of life imprisonment imposed on the appellant. Having considered the mitigation proffered by the appellant on record the sentence that commends to us is 25 years imprisonment.”

105. The position was similarly adopted by the same Court in Dismas Wafula Kilwake vs Republic [2018] eKLR where this Court stated 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.”

106. 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.

107. 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 section 28 ofn the Constitution.

108. The approach to be adopted in determining an appropriate sentence where a minimum sentence is prescribed was set out in S vs Malgas 2001 (2) SA 1222 SCA 1235 paragraph 25 as follows:“What stands out quite clearly is that the courts are a good deal freer to depart from the prescribed sentences than has been supposed in some of the previously decided cases and that it is they who are to judge whether or not the circumstances of any particular case are such as to justify a departure. However, in doing so, they are to respect, and not merely pay lip service to, the Legislature's view that the prescribed periods of imprisonment are to be taken to be ordinarily appropriate when crimes of the specified kind are committed.”

109. This Court does not doubt the good intentions of the drafters of the Sexual Offences Act in taking steps to curb the menace of sexual offences and the trauma it causes to the victims of the said offence. The perpetrators of the said offences must be condemned by all means. However, the sentences to be imposed must meet the constitutional dictates.

110. It is also debatable whether minimum mandatory sentences which only prescribe imprisonment as the mode of sentencing are in tandem with the International Covenant on Civil and Political Rights of 1966, which Kenya ratified in 1972 and for that reason, Covenant forms part of Kenyan law pursuant to article 2(6) of the Constitution. Article 10(3) of the Covenant stipulates that—“[t]he penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation.” A sentence that does not provide for other options save for custodial sentence may well be frowned upon the ground that it may not achieve the essential aim of sentencing.

111. 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.

112. 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 in Dismas Wafula Kilwake vs Republic [2019] eKLR that:“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.”

113. I however associate myself with the sentiments of the Court of Appeal in It was noted that the Court of Appeal in Eliud Waweru Wambui vs Republic[2019] eKLR has also rallied the above call for legislative amendments to the Sexual Offences Act by opining that; -“We need to add as we dispose of this appeal that the Act does cry out for a serious re-examination in a sober, pragmatic manner. Many other jurisdictions criminalize only sexual conduct with children of a younger age than 16 years. We think it is rather unrealistic to assume that teenagers and maturing adults in the sense employed by the English House of Lords in Gillick vs West Norfolk and Wisbech Area Health Authority [1985] 3 All ER 402, do not engage in, and often seek sexual activity with their eyes fully open. They may not have attained the age of maturity but they may well have reached the age of discretion and are able to make intelligent and informed decisions about their lives and their bodies. That is the mystery of growing up, which is a process, and not a series of disjointed leaps. As Lord Scarman put it in that case (at p421);“If the law should impose on the process of “growing up" fixed limits where nature knows only a continuous process, the price would be artificially and a lack of realism in an area where the law must be sensitive to human development and social change.” At p. 422. In England, for instance, only sex with persons less than the age of 16, which is the age of consent, is criminalized and even then the sentences are much less stiff at a maximum of 2 years for children between 14 to 16 years of age. See Archbold Criminal Pleading, Evidence and Practice, [2002] p1720. The same goes for a great many other jurisdictions. A candid national conversation on this sensitive yet important issue implicating the challenges of maturing, morality, autonomy, protection of children and the need for proportionality is long overdue. Our prisons are teeming with young men serving lengthy sentences for having had sexual intercourse with adolescent girls whose consent has been held to be immaterial because they were under 18 years. The wisdom and justice of this unfolding tragedy calls for serious interrogation. For the reasons we have set out herein, we find that the appellant’s conviction was not safe, given the full circumstances of the case and the sentence, clearly imposed on the basis of a mandatory minimum was clearly harsh and excessive.’’

114. That a strict application of some of the provisions of the Sexual Offences Act may cause injustice was appreciated by the Court of Appeal in Evans Wanjala Siibi vs Republic [2019] eKLR.“Once again the unfair consequences of a skewed application of that statute predominantly against the male adolescent is quite apparent: two youths caught engaging in sex receive diametrically opposite treatment. The girl is branded a victim and guided to turn against her youthful paramour while the boy, Juliet’s Romeo, is branded the villain, hauled before the courts and visited with a lengthy jail term. We very much doubt that it conduces to good sense, policy and our own conceptions of justice and fairness that the law should be deployed in a manner so disparative and discriminative in effect. A supposed justice resting on the shaky foundation of injustice against young boys hardly warrants the term.”

115. This Court also had occasion to weigh in on the same matter in Yawa Nyale vs Republic [2018] eKLR where it expressed itself as hereunder:“It is now clear that certain provisions of the Sexual Offences Act, are a cause of concern in this country. The effect of the harsh minimum sentences imposed under the said Act on young people in this country is a serious cause of concern. Our jails are overflowing with young people convicted courtesy of the provisions of the said Act. While I appreciate that sexual offences do demean the victims of such crimes and ought not to be taken lightly, the general society in which we operate ought to be taken into account in order to achieve the objectives of punishment. Penal provisions ought to take into account the objectives intended to be achieved and should not just be an end in themselves otherwise they may end up being unjust especially where the penalties imposed do not deter the commission of crimes where both the victim and the offender do not appreciate the wrongdoing in question.”

116. Having said that the ultimate decision as to what ought to be done must remain that of the legislature. Ours is simply to align the legislation that were in existence before the promulgation of the Constitution of Kenya, 2010 with the letter and spirit of the Constitution.

117. In the case R vs Scott (2005) NSWCCA 152 Howie J Grove and Barr JJ stated:“There is a fundamental and immutable principle of sentencing that this sentence imposed must ultimately reflect the objective seriousness of the offence committed and there must be a reasonable proportionality between the sentence passed in the circumstances of the crime committed…”

118. Having considered the issues raised in this petition, the orders that commend themselves to me and which I hereby grant are as follows:1)To the extent that the Sexual Offences Act prescribe minimum mandatory sentences, with no discretion to the trial court to determine the appropriate sentence to impose, such sentences fall foul of article 28 of the Constitution. However, the Court are at liberty to impose sentences prescribed thereunder so long as the same are not deemed to be the mandatory minimum prescribed sentences.2)Taking cue from the decision in Francis Karioko Muruatetu & Another vs Republic [2017] eKLR (Muruatetu 1) those who were convicted of sexual offences and whose sentences were passed on the basis that the trial Courts had no discretion but to impose the said mandatory minimum sentence are at liberty to petition the High Court for orders of resentencing in appropriate cases.3)Save for the foregoing, the other reliefs are declined since this Court cannot grant a blanket order for resentencing in the manner sought.4)There will be no order as to the costs of this petition.

JUDGEMENT READ, SIGNED AND DELIVERED IN OPEN COURT AT MACHAKOS THIS 17TH DAY OF MAY, 2022. G V ODUNGAJUDGEIn the presence of:**The petitioners virtuallyMr Jamsumba for the 1st RespondentMs Lungu for the 2nd RespondentCA Susan