[2022] KEHC 16221 (KLR)

Mbugua v Director of Public Prosecutions & another (Petition 56 of 2022) [2022] KEHC 16221 (KLR) (14 December 2022) (Judgment)

Neutral citation: [2022] KEHC 16221 (KLR)

Republic of Kenya

In the High Court at Nyahururu

Petition 56 of 2022

CM Kariuki, J

December 14, 2022

In the matter of articles 2 (1), 10, 19,20,21,22,23,25,27 (1), (2), (4), 28, 29 (a) (f), (50) and (165) of the constitution of Kenya, 2010 and in the matter of the supreme court directive petition no. 15 and 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 216 and 329 of the criminal procedure code and in the matter of the kenya judiciary sentencing policy guidelines

Between

Dennis Kariuki Mbugua

Petitioner

and

Director of Public Prosecutions

1st Respondent

Attorney General

2nd Respondent

Judgment

1. The Petitioner was charged in Nyahururu Chief Magistrate’s Court S.O.A Case No. 42 of 2016 with the offence of defilement contrary to Section 8 (1) as read with Section 8 (3) of the Sexual Offences Act No. 3 of 2006. Particulars being that on the 12th day of April 2018 at Milango Village in Laikipia County, he unlawfully and intentionally caused his genital organ namely penis to penetrate into the vagina of M.W.M a girl aged 14 years.

2. The Petitioner also faced an alternative charge of committing an indecent act contrary to Section 11 (1) of the Sexual Offences Act No. 3 of 2006.

3. The Petitioner pleaded guilty to the main charge and he was convicted and sentenced to serve 20 years imprisonment on 21/4/2016.

4. Being aggrieved by this decision, the appellant file an appeal against the conviction and sentence vide Nyahururu High Court Criminal Appeal No. 9 of 2018; Dennis Kariuki Mbugua vs Republic and the High Court upheld the trial court’s holding on conviction and sentence.

5. The petitioner cited the High Court’s holding on the 20 years imprisonment meted on him as follows:“Unless and until the mandatory aspect of minimum sentence in the provisions of Section 8 (3) of the Sexual Offences Act are declared unconstitutional or amended, the provisions remain he law. A constitutional case will have to be instituted challenging the constitutionality of the same provisions, thus this court had no mandate to interfere with the sentence imposed by the trial court.”

6. The constitutionality of the minimum mandatory sentences provided for under the Sexual Offences Act No. 3 of 2006 was dealt with the High Court at Machakos in High Court Petition No. E01of 2021 Philip Mueke Maingi & 5 Others vs ODPP & the AG where Justice G.V. Odunga on finding that the minimum mandatory sentences offend Article 28 of the Constitution of Kenya, further observed that: -“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 sentences are at liberty to petition the high court for orders of resentencing in appropriate cases.”a.The Petitioner contended that he has served a period of six years and four months imprisonment as at the time of filing the petition herein, he has exhibited exemplary behavior while in custody where he has undertaken tailoring course in the year 2019-2020 and a Diploma in Theological Education year 2018-2019 while at Kingongo Main Prison and he is rehabilitated and reformed and suitable for resentencing and release.

7. The Petitioner asserted that he is a youth aged 26 years and shall be of good use to the society.

8. It was submitted that the imposition of the minimum mandatory sentence of 20 years imprisonment provided for under Section 8 (1) (3) of the Sexual Offences Act No. 3 of 2006 violates the Petitioner’s constitutional rights to include the right to human dignity as mandated under Article 28 of the Constitution.

9. The Petitioner there prays that: -A declaration that the sentence of 20 years imprisonment imposed by the learned trial magistrate on Petitioner in Nyahururu Chief Magistrate’s Court S.O.A Case No. 42 of 2016 on the 21/4/2016 violates the Petitioner’s constitutional rights including Article 28 of the Constitution of Kenya, 2010. An order for resentencing do issue and for the honourable court to declare that the sentence so far served by the Petitioner as sufficient punishment and for the Petitioner to be released from prisons.Any other of further relies that the honourable court might deem fit and just to grant in the circumstances.

10The Petitioner also relied on the supporting affidavit deponed by himself dated 19th August 2022.

11On the other hand, the Attorney General filed Grounds of Opposition dated 30th August 2022 stating that the petition is incurably defective and ought to be dismissed at first instance because the Petitioner relied on the judgment and decision in the Muruatetu Case but failed to appreciate the fact that on 6th July 2021, the supreme court through the chief justice gave directions on the application of the said mandatory minimum sentencing.

12Counsel for the Attorney General averred that under the directions by the Chief Justice, sexual offences were not to be part of the offences affected by the said decisions and that the applicant did not meet the provisions of Section 13(a) of the Government Proceedings Act which makes it a requirement to issue a notice of intention to sue the government.

Petitioner’s Submissions 13. The Petitioner submitted that this court has jurisdiction to hear and determine this petition under Article 22 (1), 23 (1) and 165 of the Constitution.

14. On whether this court should declare the sentence of 20 years imprisonment imposed by the learned trial magistrate on the Petitioner violated the Petitioner’s constitutional rights enshrined in the Constitution particularly Article 28, the Petitioner submitted in the affirmative.

15. Reliance was placed on Lawrence Muchina Ngugi vs Republic [2019] eKLR

16It was contended that the trial court ought to take into count the aggravating and mitigating circumstances which accords an accused person the right to a fair hearing as per Article 50 of the Constitution.

17. Further reliance was placed on the case of Philip Mueke Maingi & 5 Others Vs ODPP & the AG (High Court Petition No. E017 of 2021)The Petitioner submitted that due to the dictates of the mandatory minimum sentences coached in the Sexual Offences Act, the learned trial magistrate never considered the Petitioner’s remorsefulness by pleading guilty so as to be forgiven, being a first offender and pleading guilty at the earliest opportunity.

18. Reliance was also placed in the consolidated petitions of Edwin Wachira & 9 Others vs Republic and Adnan Maka Thulu vs Director of Public Prosecutions and Robert Mwangi vs Director of Public Prosecutions and Kazungu Kalama Jojwa vs Director of Public Prosecutions.

19. It was averred that this court should order resentencing and declare that the sentence the Petitioner has served so far as sufficient punishment. Reliance was placed on William Okungu vs Republic KSM CA Criminal Appeal No. 56 of 2013 [2018 eKLR, Christopher Ochieng vs Republic [2018] eKLR, Sabiano Mbondo Okanga vs Director of Public Prosecutions [2021] eKLR & AH vs Director of Public Prosecution [20121] eKLR.

1st Respondent’s Submissions 20. The 1st Respondent stated that this court lacks jurisdiction to hear this petition for 2 reasons:-

21. That this court as already dealt with the issue of sentencing in this matter on appeal and dismissed the same and therefore cannot review its own orders. Reliance was placed on Aboud Muchiri Alex vs. Republic [2020] eKLR

22. The Petitioner relying on the decision in the Philip Mueke Case is asking the court to apply the said decision retrospectively contrary to the law. The case of John Gichovi Muturi vs Republic [2021] eKLR & John Kagunda Kariuki vs Republic [2019] eKLR was cited.

23. It was argued that the Petitioner cannot in the circumstances of the case benefit from the holding in the decision in Philip Mueke Case which itself relied on the Muruatetu Case.

Analysis and Determination 24. The petition herein centrally seeks a declaration that the Petitioner’s sentence of 20 years in unconstitutional and therefore a resentencing hearing should be granted.

25. On 17th May 2002, The High Court, in Philip Mueke Maingi & others v Director of Public Prosecutions & Another Machakos HCPet. No. E017 of 2021 (Odunga J), gave directions, with respect to mandatory sentences for sexual offences, similar to those given in Francis Muruatetu & Another vs Republic [2017] eKLR.

26. The jurisdiction of this court to hear the petition herein has been challenged by the 1st Respondent. The petition before this court seeks for redress of a denial, violation or infringement of a right or fundamental freedom in the bill of rights. The fundamental provisions cited on re-sentencing are article 50 of the Constitution. The arguments presented also draw upon the dictum in the case of Philip Mueke Maingi & others v Director of Public Prosecutions & Another (supra) that prescription of mandatory sentence in sexual offences cases takes away the discretion of the court in sentencing, and therefore, is inconsistent with the Constitution.

27. Additionally, the jurisdiction of this court is provided for under Article 165 of the Constitution, and pursuant to that Article, this court has unlimited original jurisdiction in criminal and civil matters, jurisdiction to enforce bill of rights, appellate jurisdiction, jurisdiction to interpret the Constitution and supervisory jurisdiction over subordinate courts and any other jurisdiction, original or appellate, conferred on it by legislation.

28. Pursuant to that article, the High Court, has jurisdiction to hear and determine application for redress of a denial, violation or infringement of or threat to, a right or fundamental freedom in the bill of rights. Hence, it is my finding that the petition herein is properly before the court.

29. Previously, the threshold of resentencing hearings was revised by the Supreme Court when new directions were issued over the Muruatetu Case dictating that resentencing hearings are only applicable to charges under Sections 203 as read with Section 204 of the Penal Code on murder, and not the other cadre of offences such as robbery with violence or sexual offences. Nevertheless, following the dictum in the Philip Mueke Case (supra) the courts can now exercise discretion when considering and passing sentence in regards to sexual offences cases. However, the said discretion however should only be exercised in the deserving cases. The court is also called upon to take into account the objectives of sentencing as laid down in the Sentencing Policy Guidelines, 2016 published by the Judiciary and which includes: -i.Retribution: To punish the offender for his/her criminal conduct in a just manner.ii.Deterrence: To deter the offender from committing a similar offence subsequently as well as to discourage other people from committing similar offences.iii.Rehabilitation: To enable the offender reform from his criminal disposition and become a law-abiding person.iv.Restorative justice: To address the needs arising from the criminal conduct such as loss and damages. Criminal conduct ordinarily occasions victims’, communities’ and offenders’ needs and justice demand that these are met. Further, to promote a sense of responsibility through the offender’s contribution towards meeting the victims’ needs.v.Community protection: To protect the community by incapacitating the offender.vi.Denunciation: To communicate the community’s condemnation of the criminal conduct.”

30. To enable me exercise discretion in resentencing hearing over the matter herein in the manner directed in Philip Mueke Maingi Case, I called for the trial record Nyahururu Chief Magistrate’s Court S.O.A Case No. 42 of 2016. From the proceedings, on 12/4/2016 at around 2. 00 pm the complainant who was 14 years old in the case at Mirango Village was sent by her grandmother to go fetch water. On her way back home, she met the accused person who pushed her down and pulled her into a nearby bush where he defiled her. In the process the accused held her neck to prevent her from making any noise.as a result she sustained some bruises on her neck. The minor reported to her grandmother who reported to the police resulting to the accused’s arrest.

31. The Petitioner urged this court in resentencing to find that the sentence he has already served a sufficient because he has exhibited exemplary behavior while in custody where he has undertaken tailoring course in the year 2019-2020 and a Diploma in Theological Education year 2018-2019 while at King’ong’o Main Prison and he is rehabilitated and reformed and suitable for resentencing and release and that he is a youth aged 26 years and shall be of good use to the society

32. The Petitioner herein callously took advantage of the complainant and caused her psychological trauma and physical harm. Defilement has become rampant in Kenya today and the trial court even noted that the purpose of the sentence was to act as a deterrent. There is need to exact penalties that will curtail sexual predators and express the society’s desire to punish sexual offenders and get rid of this vice. I agree that severe sentence such as life sentence can be inflicted in appropriate cases and circumstances without offending the Constitution or any other law on sentencing as was held in Baragoi Rotiken v Republic [2022] eKLR

33. From the foregoing, I take judicial note of the Petitioner’s mitigating circumstances and the circumstances of the offence and most importantly the purposes of sentence in particular proportionality and deterrence which govern that: -41. Proportionality: The sentence meted out must be proportionate to the offending behaviour. The punishment must not be more or less than is merited in view of the gravity of the offence. Proportionality of the sentence to the offending behaviour is weighted in view of the actual, foreseeable and intended impact of the offence as well as the responsibility of the offender.

42. Deterrence- Prevent crime and reduce crime rate-based on the notion that everyone understands that certain conduct constitutes a crime which carries a severe penalty, and that because of this the public will desist from the targeted conduct.

34. Accordingly, I find that the Petitioner it is unjustifiable for this court to declare that the sentence so far served by the Petitioner as sufficient punishment as it is not given the aforementioned circumstances. However, I make the orders;i.The sentence of 20 years is set aside and substituted to 10 years’ imprisonment to take into account the time already served with effect from on 21/4/2016.

DATED, SIGNED AND DELIVERED AT NYAHURURU THIS 14TH DAY OF DECEMBER 2022. CHARLES KARIUKIJUDGE