[2024] KEHC 4109 (KLR)
The court found that the mandatory life sentence imposed under section 8(2) of the Sexual Offences Act is unconstitutional to the extent that it deprives the court of discretion to impose an appropriate sentence based on the circumstances of the case. Relying on the Supreme Court's reasoning in Muruatetu and the...
Source-derived case information.
- Citation
- [2024] KEHC 4109 (KLR)
- Parties
- Applicant: Julius Kipruto Martin; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Criminal Miscellaneous Application 136 of 2019
- Procedural Posture
- Criminal Miscellaneous Application / Application for Resentencing and Sentence Review After Conviction and Appeals Exhausted
- Outcome
- Application for resentencing allowed; life sentence substituted with 25 years imprisonment, with time spent in custody to be considered.
- Judges
- PN Gichohi
- Legal Topics
- Defilement, Sentencing Principles, Mandatory Sentences, Judicial Discretion, Sexual Offences Act, Sentence Review
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Julius Kipruto Martin
Applicant
Republic
Respondent
Procedural Posture
Criminal Miscellaneous Application / Application for Resentencing and Sentence Review After Conviction and Appeals Exhausted
Legal Issues
- 1 Whether the mandatory life sentence for defilement under section 8(2) of the Sexual Offences Act is constitutional in light of recent jurisprudence.
- 2 Whether the applicant is entitled to resentencing and if so, what sentence is appropriate given the circumstances.
Ratio Decidendi
The court found that the mandatory life sentence imposed under section 8(2) of the Sexual Offences Act is unconstitutional to the extent that it deprives the court of discretion to impose an appropriate sentence based on the circumstances of the case. Relying on the Supreme Court's reasoning in Muruatetu and the Court of Appeal's application of that reasoning to the Sexual Offences Act in Dismas Wafula Kilwake, the court held that it had jurisdiction to review the applicant's sentence. Considering the applicant's plea of guilt, the unequivocal admission, the age of the victim, the applicant's remorse, and the need for a deterrent sentence, the court determined that a custodial but...
Court Disposition
Application for resentencing allowed; life sentence substituted with 25 years imprisonment, with time spent in custody to be considered.
Orders
- The life sentence is substituted with a sentence of twenty-five (25) years imprisonment.
- In computing the sentence, the period the applicant spent in custody from 27/05/2011 to 06/06/2011 shall be taken into account.
Full Case Text
Judgment text and source record
32 paragraphs
Martin v Republic (Criminal Miscellaneous Application 136 of 2019) [2024] KEHC 4109 (KLR) (30 April 2024) (Ruling)
Neutral citation: [2024] KEHC 4109 (KLR)
Republic of Kenya
In the High Court at Nakuru
Criminal Miscellaneous Application 136 of 2019
PN Gichohi, J
April 30, 2024
Between
Julius Kipruto Martin
Applicant
and
Republic
Respondent
Ruling
1. When the applicant herein appeared for plea before Hon. H.O Barasa SRM on 20/05/2011 in Nakuru Chief Magistrate’s Court A/CR Case No. 88 of 2011, he pleaded guilty to the charge of defilement contrary to section 8 (1) as read with section 8 (2) of the Sexual Offence Act. He was convicted on his own plea and sentenced to serve life imprisonment.
2. Aggrieved, he preferred an appeal vide Nakuru High Court Criminal Appeal No. 25 of 2015. His grievance was on conviction and sentence. He urged the Court to quash the conviction for being equivocal. He termed the sentence as excessively harsh.
3. After the hearing of the appeal, Prof. J. Ngugi J (as he then was ) rendered his judgment on 21/06/2018 dismissing the appeal for lack of merit and upholding both the conviction and sentence.
4. Aggrieved, the Applicant moved to the Court of Appeal in Criminal Appeal No. 52 of 2018 and after hearing both parties, the Court marked the Appeal as withdrawn and therefore dismissed under rule 68 (1) of the Court of Appeal Rules.
5. He has now come before this Court vide an undated notice of motion seeking re-sentence and review of the sentence herein.
6. While citing Francis Karioko Muruatetu v Republic (Supreme Court Petition No. 15 of 2015), the Applicant termed the mandatory life imprisonment as excessive and harsh. He therefore urged the Court to grant him an appropriate sentence.
7. By a replying affidavit sworn on 05/03/2024 by James Kihara, the learned Counsel for the State, the Respondent has no objection to reviewing of the life imprisonment . He however urges the Court to consider giving a deterrent sentence.
8. Further, he urges the Court to consider as part of the sentence, the time the Applicant has spent in custody prior to conviction under section 333 (2) of the Criminal Procedure Code.
Determination 9. This Court has heard the parties. There is no doubt that the child defiled by the applicant was aged 10 years and that he was treated as a first offender. While sentencing the applicant to life imprisonment, the trial court considered the nature of the offence and the circumstances it was committed.
10. While dealing with the appeal on sentence, the learned Judge had this to say :-“On sentence, Mr. Chigiti submitted that the sentence meted out was the minimum so there was no room for the court to give a lesser sentence.”
11. The Court therefore held:-“Turning to the sentence, Mr. Chigiti is right that once a conviction is entered under section 8 (2) of the Sexual Offences Act (where the victim is less than eleven years old) , the only possible sentence is life imprisonment . That was the sentence imposed on the Appellant . His appeal against sentence is, therefore , equally without merit.”
12. Definitely, the High Court relied on the mandatory sentence on 21/06/2018 while upholding the life imprisonment meted by the trial Court.
13. Regarding such mandatory sentence, this Court is alive to the decision in Dismas Wafula Kilwake v Republic [2019] eKLR where while referring to the Supreme Court decision Francis Karioko Muruatetu v Republic (Supreme Court Petition No. 15 of 2015 ) on mandatory sentence , the Court of Appeal held:-“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.”
13. This Court considers the victim’s tender age when the Applicant defiled her . He did admit that offence in a plea that was unequivocal. The Court also notes his remorse in that during mitigation, he had sought forgiveness.
14. Nevertheless, and in the circumstances herein, a custodial but determinate and deterrent sentence is the most appropriate.
15. The Applicant is therefore re- sentenced to serve 25 years imprisonment. The time spent in custody from the date of arrest to the time he was convicted and sentence should be taken into account in compliance with Section 333 (2) of the Criminal Procedure Code.
16. In conclusion, the court makes the following orders:-1. The life sentence is therefore substituted with a sentence of twenty-five (25) years imprisonment.2. In computing that sentence, the period the applicant spent in custody, that is from the date of arrest being 27/05/2011 to 06/06/2011 when he was convicted and sentenced, shall be taken into account.
DATED, SIGNED AND DELIVERED AT NAKURU THIS 30TH DAY OF APRIL , 2024. PATRICIA GICHOHIJUDGEIn the presence of:Julius Kipruto Martin - ApplicantMr. Kihara for RespondentRuto - Court Assistant