[2023] KEHC 24841 (KLR)

Mechi v Republic (Miscellaneous Criminal Application E025 of 2023) [2023] KEHC 24841 (KLR) (2 November 2023) (Ruling)

Neutral citation: [2023] KEHC 24841 (KLR)

Republic of Kenya

In the High Court at Kiambu

Miscellaneous Criminal Application E025 of 2023

PM Mulwa, J

November 2, 2023

Between

Dominic Wakibili Mechi

Applicant

and

Republic

Respondent

Ruling

1. The Applicant herein Dominic Wakibili Mechi moved this court by a Chamber Summons Application which is not dated but was filed on 10th May 2023, seeking orders of resentence hearing.

2. The Applicant was charged and convicted of the offence of defilement contrary to Section 8(1) as read with 8(2) of the Sexual Offences Act. The particulars were that; on March 21 2014, in Muranga County, intentionally caused his penis to penetrate the vagina of PK a child aged 8 1/2 years. He was convicted and sentenced to life imprisonment.

3. He then preferred an appeal at the High Court in Kiambu CR appeal no. 156 of 2017 where Justice Mumbi Ngugi upheld the conviction. The Applicant proceeded to file a second appeal at the Court of Appeal - Criminal Case No. 52 of 2020, where the court in its decision dismissed the appeal and upheld the conviction.

4. The Applicant has now applied for re-sentencing pursuant to the High Court decision at Mombasa in the matter of Edwin Wachira & 9 Others vs Republic Petition No. 97 of 2021.

5. The Applicant avers that the sentence imposed on him was discriminatory and cruel.

6. The application was heard through written submissions. The Respondent (state counsel) counsel did not put in written submissions.

7. In the instant case the Applicant was charged under Section 8(1) as read with Section 8(2) of the Sexual Offences Act.1. A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.2. A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life.

8. According to the Applicant the mandatory sentence provided by the Act denied the trial magistrate the discretion to mete out an appropriate sentence considering the circumstances of the case and the mitigation of the Applicant. The Applicant now seeks the intervention of this court to set aside the sentence imposed by the trial court, for being inconsistent with the Constitution.

9. The Court of Appeal in the case of Evans Wanjala Wanyonyi vs Republic [2019] eKLR. held thus:“24. On the enhanced 20-year term of imprisonment meted upon the appellant by the learned judge, we are of the view that the constitutionality of the mandatory minimum sentence meted out to the appellant raises a question of law. This Court in Christopher Ochieng –v- R [2018] eKLR Kisumu Criminal Appeal No. 202 of 2011 and in Jared Koita Injiri –v- R, Kisumu Criminal Appeal No.93 of 2014 considered the legality of minimum mandatory sentences under the Sexual Offences Act. This Court noted that the Supreme Court in Francis Karioko Muruatetu & Another –v- Republic SC Petition No. 16 of 2015 held the mandatory death sentence prescribed for the offence of murder by Section 204 of the Penal Code was unconstitutional; that the mandatory nature deprives courts of their legitimate jurisdiction to exercise discretion not to impose the death sentence in an appropriate case; that a mandatory sentence fails to conform to the tenets of fair trial that accrue to the accused person under Article 25 of the Constitution. Guided by the afore-stated Supreme Court decision, this Court in Christopher Ochieng –vs- R(supra) stated: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 –v- Republic (supra), we would set aside the sentence for life imprisonment imposed and substitute it therefore with a sentence of 30 years’ imprisonment from the date of sentence by the trial court.”

10. Also the High Court case in Wachira & 12 others v Republic & 2 others (Petition 97, 88, 90 & 57 of 2021 (Consolidated)) [2022] KEHC 12795 (KLR) (31 August 2022) (Judgment) the court opined: “…Similarly, taking away judicial discretion and the fact that the mandatory minimum sentences deprive the court the discretion to prescribe a sentence taking into account the individual circumstances of the accused unfair to the accused and it impinges on the right to a fair trial. Sentencing is an integral part of a judicial function and an important element of a fair trial process. Similarly, the provisions under challenge deprive the accused person of the benefit of a lesser sentence informed by the circumstances of each offence. Lastly, unlike in other offences, the mandatory minimum sentences are discriminatory because they deprive the accused person of the full benefit of the law contrary to Article 27 as earlier discussed.”

11. Guided by the above decision of the Court of Appeal, this court forms the view that the Applicant has satisfied this court to warrant a review of the sentence. The Court opines the mandatory life sentence imposed on the applicant is harsh, discriminatory and excessive in the circumstances and the same is set aside.

12. The Applicant shall serve a sentence of thirty (30) years imprisonment with effect from the time of his arrest.It is so ordered.

RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT KIAMBU THIS 2ND DAY OF NOVEMBER 2023. ...................................P.M. MULWAJUDGEIn the presence of:Applicant in person – present virtually from Kamiti Max. PrisonMs. Ngesa - for the RespondentDuale – court assistant