[2024] KEHC 7086 (KLR)
The court found that the imposition of a mandatory life sentence under the Sexual Offences Act, without regard to the petitioner's advanced age, severe health conditions, and the period already served, contravenes Article 28 of the Constitution, which guarantees the right to dignity. The court observed that the...
Source-derived case information.
- Citation
- [2024] KEHC 7086 (KLR)
- Parties
- Appellant: Francis M’Ampuria; Respondent: Director Of Public Prosecutions
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Petition E009 of 2024
- Procedural Posture
- Constitutional Petition / Judgment
- Outcome
- petition allowed in part; sentence revised and commuted to time served
- Judges
- TW Cherere
- Legal Topics
- Sentencing Principles, Sexual Offences, Mandatory Minimum Sentences, Constitutional Rights, Resentencing, Dignity of Prisoners
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Francis M’Ampuria
Appellant
Director Of Public Prosecutions
Respondent
Procedural Posture
Constitutional Petition / Judgment
Legal Issues
- 1 Whether the mandatory minimum sentence for defilement under the Sexual Offences Act violates the right to dignity under Article 28 of the Constitution.
- 2 Whether the petitioner, given his age, health, and period already served, should have his life sentence revised and commuted.
Ratio Decidendi
The court found that the imposition of a mandatory life sentence under the Sexual Offences Act, without regard to the petitioner's advanced age, severe health conditions, and the period already served, contravenes Article 28 of the Constitution, which guarantees the right to dignity. The court observed that the petitioner, now 82 years old, partially blind, suffering from dementia and incontinence, and having served over eight years in prison, is a liability to prison authorities and that further incarceration would serve no meaningful penal or rehabilitative purpose. Citing the precedent in Maingi & 5 others v DPP, the court held that mandatory minimum sentences that eliminate judicial...
Court Disposition
petition allowed in part; sentence revised and commuted to time served
Orders
- The term of life imprisonment imposed on the petitioner is revised and commuted to the period already served.
Full Case Text
Judgment text and source record
26 paragraphs
M’Ampuria v Director of Public Prosecutions (Petition E009 of 2024) [2024] KEHC 7086 (KLR) (20 March 2024) (Judgment)
Neutral citation: [2024] KEHC 7086 (KLR)
Republic of Kenya
In the High Court at Meru
Petition E009 of 2024
TW Cherere, J
March 20, 2024
Between
Francis M’Ampuria
Petitioner
and
Director Of Public Prosecutions
Respondent
Judgment
1. Petitioner was convicted on his own plea of guilt to the offence of defilement contrary to section 8(1) as read with section 8 (2) of the Sexual Offences Act and was sentenced to life imprisonment.
2. Petitioners’ appeal to the High Court vide Meru Criminal Appeal No. 3 of 2017 was dismissed on 05th July, 2018.
3. Petitioner seeks resentence on the grounds among others that he is 82 years old and has reformed.
4. Ms. Rita, learned counsel for the DPP opposed the Petition on the grounds that the offence was committed against an 8-year-old child who was traumatised and Applicant who is old enough to be her grandfather ought to be incarcerated long enough to pay for his crime. She proposed an imprisonment term of 30 years.
5. 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, falls foul of Article 28 of the Constitution which provides that “Every person has inherent dignity and the right to have that dignity respected and protected”. (See Maingi & 5 others v Director of Public Prosecutions & another (Petition E017 of 2021) [2022] KEHC 13118 (KLR)).
6. When he appeared virtually before this court, I noticed that he had difficulty walking and had to be assisted by another inmate. He similarly could not comprehensively express himself.
7. Petitioner has been in continuous incarceration since January, 2016 which is a period of 8 years and 5 months from the date of his arrest.
8. Petitioner filed a medical report dated 07th February, 2024 which reveals that he is partially blind and suffers from urine inconsistence and dementia.
9. When he appeared virtually before this court, I noticed that he had difficulty walking and had to be assisted by another inmate. He is therefore no doubt a liability to the prison authorities. I also noticed that Petitioner could not comprehensively express himself.
10. Flowing from the foregoing, I find that it would not serve any meaningful purpose to confine Petitioners to a life of hopelessness.
11. The term of life imprisonment imposed on the Petitioner is revised and commuted to the period already served.
DELIVERED AT MERU THIS 20TH DAY OF MARCH 2024WAMAE. T. W. CHEREREJUDGEAttendancesCourt Assistants - Kinoti/ MunenePetitioner - Present in personFor the DPP - Ms. Rita (PC-1)