[2022] KEHC 16250 (KLR)

Munene v Republic (Criminal Appeal 135 of 2017) [2022] KEHC 16250 (KLR) (15 December 2022) (Judgment)

Neutral citation: [2022] KEHC 16250 (KLR)

Republic of Kenya

In the High Court at Narok

Criminal Appeal 135 of 2017

F Gikonyo, J

December 15, 2022

Between

James Muritu Munene

Appellant

and

Republic

Respondent

(Being an appeal from the original conviction and sentence of Hon. H. Ng’ang’a (S.R.M.) in Narok SOA Case No. 37 of 2017 on 16/10/2017)

Courts should consider the time accused spent in custody in sentencing

The appellant was charged, convicted and sentenced to serve 10 years’ imprisonment for the offence of attempted defilement. The appellant contended that the trial court erred in law by not taking into consideration the time he spent in custody during the trial in his sentencing. The court found that failure to take account of time spent in custody as provided in the proviso to section 333(2) of the Criminal Procedure Code opened the accused to a real risk of serving a more severe sentence than was lawfully prescribed or proportional to the offence. The court further held that a convicted person who so suffered could file an action for redress of a denial, violation, or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights under article 23(1) and 165(3)(b) of the Constitution.

Reported by John Ribia

Criminal Procedure– sentencing – considerations – time spent in custody during trial - whether courts were duty bound to consider the time spent by an accused person in custody while meting out the accused sentence - Criminal Procedure Code (Cap 75) sections 137 I(2)(a) and 333(2).Statutes– interpretation of statutory provisions – interpretation of sentencing provisions – interpretation of section 9(2) of the Sexual Offences Act - whether the wording of the sentencing provision of the charge of attempted defilement (section 9(2) of the Sexual Offences Act) that provided that such a person was liable upon conviction to imprisonment for a term of not less than ten years as worded provided for a mandatory minimum sentence - whether to the extent that a provision of law took away the discretion of a court in sentencing, it offended the tenets of fair trial and therefore unconstitutional.Precedent– interpretation of precedent - interpretation of Francis Karioko Muruatetu & another v Republic [2017] eKLR (Muruatetu I) – Muruatetu & another v Republic; Katiba Institute & 4 others (Amicus Curiae) (Petition 15 & 16 of 2015) [2021] KESC 31 (KLR) (6 July 2021) (Directions) (Muruatetu II) - effect of order that limited the holding that mandatory sentences were unconstitutional to section 204 of the Penal Code - whether the Supreme Court’s decision in Francis Karioko Muruatetu & another v Republic [2017] eKLR proclaimed a foreclosure on any impeachment of, inter alia, sections of the Sexual Offences Act which provided for mandatory minimum sentences.

Brief facts The appellant was charged, convicted of the offence of attempted defilement contrary to section 9(1) as read with section 9(2) of the Sexual Offences Act. The appellant was sentenced to serve 10 years’ imprisonment. Aggrieved the appellant appealed and contended that the trial court erred in law by not taking into consideration the time the accused spent in custody during the trial in his sentencing and by not considering the Judiciary’s sentencing guidelines.

Issues

Whether courts were duty bound to consider the time spent by an accused person in custody while meting out the accused's sentence.

Whether the Supreme Court’s decision in Francis Karioko Muruatetu & another v Republic [2017] eKLR proclaimed a foreclosure on any impeachment of, inter alia, sections of the Sexual Offences Act which provided for mandatory minimum sentences.

Whether the wording of the sentencing provision of the charge of attempted defilement (section 9(2) of the Sexual Offences Act) that provided that such a person was liable upon conviction to imprisonment for a term of not less than ten years as worded provided for a mandatory minimum sentence.

Whether to the extent that a provision of law took away the discretion of a court in sentencing, it offended the tenets of fair trial and therefore unconstitutional.

Relevant provisions of the Law Sexual Offences Act (Act No 3 of 2006) section 9(1) and(2)Section 9 - Attempted defilement A person who attempts to commit an act which would cause penetration with a child is guilty of an offence termed attempted defilement.

A person who commits an offence of attempted defilement with a child is liable upon conviction to imprisonment for a term of not less than ten years.

Held

A first appellate court had the duty to re-evaluate the evidence and make its own conclusions, except bearing in mind that the trial court had the advantage of hearing and observing the demeanor of the witnesses.

With the decisional law in Francis Karioko Muruatetu & another v Republic [2017] eKLR (MuruatetuI), and the subsequent guidelines Muruatetu & another v Republic; Katiba Institute & 4 others (Amicus Curiae) (Petition 15 & 16 of 2015) [2021] KESC 31 (KLR) (6 July 2021) (Directions) (MuruatetuII), which were meant to clarify MuruatetuI, came a greater risk of diverging interpretations of the guidelines and the application of the Muruatetu decisional law by courts on re-sentencing which brought about fragmentation issues as a consequence of the move towards application of precedent.

Whereas the Supreme Court restricted the application of the decision to cases under section 204 of the Penal Code, when similar arguments were made in respect of mandatory sentences in other law, the result had been that a law that denied court discretion in sentencing was unconstitutional - a principle of law that was enunciated in Muruatetucase.

There was apparent misinterpretation of Muruatetu I, and the application of the guidelines in Muruatetu II, in that, some courts and legal practitioners had taken the view that it proclaimed a foreclosure on any impeachment of, inter alia, sections of the Sexual Offences Act which provided for mandatory minimum sentences.

A court had discretion in sentencing. Sentencing was part of the due process and fair trial. To the extent that a provision of law took away the discretion of the court in sentencing, it offended the tenets of fair trial, and therefore, unconstitutional. Mandatory sentences for that purpose included mandatory minimum sentences, for they deprived the court of discretion in sentencing, and such provision should be read down to provide discretion. The interpretation tool or technique of read-in or read-down was no longer strange or foreign in Kenya’s legal system due to clause 7 of transitional provisions of the Sixth Schedule to the Constitution.

It would be tidier if legislative intervention provided minimum sentences as opposed to mandatory minimum sentences with discretion to the court to impose appropriate sentence in light of circumstances of the individual case. The court could impose less or more than or the minimum sentence prescribed. In jurisdictions where legislative sentencing scheme was constitutionally justified had adopted presumptive or prescriptive minimum; not mandatory minimum sentences.

Sections 137 I(2)(a) and 333(2) of the Criminal Procedure Code required that a sentence shall take account of the period spent in custody. Courts had to give real effect to the section in sentencing. Merely stating that you had taken account of time spent in custody was not sufficient if the sentence, in light of the overall circumstances of the case, did not show that the period spent in custody prior to sentencing had been taken account of.

Failure to take account of time spent in custody as provided in the proviso to section 333(2) of the Criminal Procedure Code opened the accused to a real risk of serving a more severe sentence than was lawfully prescribed or proportional to the offence. A convicted person who so suffered could file an action for redress of a denial, violation, or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights under article 23(1) and 165(3)(b) of the Constitution.

The trial court imposed a sentence of 10 years’ imprisonment because it was minimum mandatory sentence. It did not exercise discretion. Such failure to exercise discretion on the basis that the law prescribed for mandatory sentence had real potentiality of prejudice to the accused.

It was debatable whether the terms used in the penalty clause, "was liable upon conviction to imprisonment for a term of not less than ten years’’ meant mandatory minimum sentence. The only provision in Sexual Offences Act where the term “shall” was used was section 8(2).

There was nothing that showed that the trial court took account of the time spent in custody in passing the sentence of 10 years’ imprisonment. The appellant did not have the advantage of section 333(2) of the Criminal Procedure Code. The sentence was excessive; the appellant was entitled to redress. The fact that the appellant was a young man and first offender, the sentence was reduced to 8 years’ imprisonment to run from when he was first arraigned before the trial court, that was June 5, 2017.

Appeal partly allowed.

Citations CasesKenya Githinji, Daniel Gichimu & another v Republic Criminal Appeal 27 of 2009; [2018] KECA 456 (KLR) - (Mentioned)

Kahinga, Joseph Kaberia & 11 others v Attorney General Petition 618 of 2010; [2016] KEHC 3130 (KLR) - (Mentioned)

Mohammed, Ahamad Abolfathi & another v Republic Criminal Appeal 135 of 2016; [2018] KECA 855 (KLR) - (Mentioned)

Muruatetu & another v Republic Petition 15 & 16 of 2015; [2017] KESC 2 (KLR) - (Explained)

Muruatetu & another v Republic; Katiba Institute & 4 others (Amicus Curiae) Petition 15 & 16 of 2015; [2021] KESC 31 (KLR) - (Explained)

Opondo, Francis v Republic of Kenya Criminal Appeal 13 of 2015; [2017] KEHC 6636 (KLR) - (Mentioned)

Regional CourtOkeno v Republic [1972] EA 32 - (Mentioned)TextsThe Judiciary of Kenya (2016), Sentencing Policy Guidelines Nairobi; The Judiciary of Kenya, clauses 7. 10, 7. 11StatutesKenya Constitution of Kenya, 2010 article 23(1); 50(2); 165(3)(b); Schedule 6; Clause 7 — Interpreted

Criminal Procedure Code (cap 75) section 17, 333(2), 350, 357, 362, 364 — Interpreted

Penal Code (cap 63) — section 204 — Interpreted

Sexual Offences Act, 2006 (Act No 3 of 2006) section 9 (1), (2) — Interpreted

AdvocatesNone mentioned

Judgment

Time Spent in Custody 1. The memorandum of appeal dated October 30, 2017 filed pursuant to sections 17, 350,357, 362, and 364 of the Criminal Procedure Code listed 6 grounds. However, on March 16, 2022 the appellant filed amended grounds of appeal pursuant to section 350(2) (v) of the CPC citing the following grounds of appeal; - Thati.The learned trial magistrate erred in law in convicting and sentencing him to serve 10 years yet failed to take into consideration all the mitigating factors raised by him the appellant which was manifestly harsh and excessive in the circumstance and occasioned a failure of justice.ii.The learned trial magistrate erred in law in convicting and sentencing him minus considering section 333(2) of the criminal procedure code.iii.Article 50(2) of theConstitution grant and provide for fair hearing and fair trial which should be granted as the law require.

2. The appellant was charged with the offence of attempted defilement contrary to section 9(1) as read with section 9(2) of the Sexual Offences Act No 3 of 2006. He was convicted of the offence and sentenced to serve 10 years’ imprisonment by Hon H Ng’ang’a (SRM) on October 16, 2017.

Appellant’s Submission 3. In his mitigation, the appellant argued that he pleaded not guilty, was a casual labourer, was just coming from home (Mau Narok), was never given an opportunity for a non-custodial sentence, is a young person aged 31 years, is a first-time offender, and was new to the scene of the crime.

4. The appellant submitted that the sentence was harsh and undesirable since the period spent in custody was not computed into his eventual sentence as provided for under section 333(2) of the CPC

5. The appellant submitted that the trial court failed to take into consideration the judiciary sentencing policy guidelines.

6. In the end, the appellant submitted that his mitigation of appeal be allowed and the sentence quashed.

7. The appellant has relied on the following authorities;i.Joseph Kaberia Kahinga & 11 others v Attorney General [2016] eKLRii.Section 333(2) of the Criminal Procedure Code.iii.Section 63 of the Penal Code.iv.Article 50(2) (p) of theConstitution of Kenya.v.Francis Opondo v Rep [2017] eKLR.vi.Daniel Gichimu & another v Rep [2018] eKLRvii.Ahamad Abolfathi Mohammed & another v Republic [2018] eKLR.

Prosecution’s Submission 8. The respondent submitted that the prosecution proved their case beyond any reasonable doubt. That the two ingredients; age, and identification of the perpetrator were proved.

9. The prosecution submitted that the defence of the appellant did not challenge the prosecution’s evidence.

10. The respondent submitted that the trial court considered the appellant’s mitigation before sentencing therefore the trial court was guided by sentencing guidelines and the aggravating circumstances in the case imposing the sentence of 10 years.

11. In the end, the respondent urged this court to uphold the conviction as well as the sentence.

Analysis and Determination Court’s duty 12. As a first appellate court, the court shall re-evaluate the evidence and make its own conclusions, except bearing in mind that the trial court had the advantage of hearing and observing the demeanor of the witnesses. See Okeno v Republic [1972] EA 32.

13. The overall issue arising from the grounds of appeal, the sentencing judgment of the lower court appellant, and the parties’ submissions is: -i.Whether the sentence imposed was harsh and excessive. Under this broad issue it shall be determined; whether the trial court was guided by the judiciary sentencing policy in relation to exercise of discretion in sentencing. More specifically, whether it took into account the mitigation, aggravating factors as well as time spent in custody in sentencing the appellant.

14. The appellant herein blames the trial court for not exercising discretion in sentencing him; more specifically, it did not take into account his mitigation and time spent in custody.

Of mandatory minimum sentence 15. The debate on the constitutionality of mandatory minimum sentences, especially in the Sexual Offences Act, is still raging amongst eminent jurists, lawyers, courts as well as other disciplines. Some courts have already made pronouncements on the question. But, the debate is not closed.

16. The debate was sparked off by the Muruatetu decisional law, and further complicated by the Guidelines that were subsequently issued by the Supreme Court in the case.

Muruatetu Dilemmas 17. With Muruatetu decisional law (hereafter Muruatetu I), and the subsequent Guidelines (hereafter Muruatetu II), which were meant to clarify Muruatetu I, came a greater risk of diverging interpretations of the guidelines and the application of the Muruatetu decisional law by courts on re-sentencing which brought about “fragmentation” issues as a consequence of the move towards application of precedent.

18. Some courts feel and hold the view that, whereas the Supreme Court restricted the application of the decision to cases under section 204 of the Penal Code, when similar arguments are made in respect of mandatory sentences, in other law the result has been that a law that denies court discretion in sentencing is unconstitutional- a principle of law that was enunciated in Muruatetu case. This call into question, the utility of the restraint imposed.

19. In addition, to the extent I am aware, the structural dilemma that arose out of Muruatetu is, which court should do re-sentencing- which still persists.

20. But, a more serious matter is the effect of the apparent misinterpretation of the Muruatetu decision II, and the application of the Guidelines thereto, in that, some courts and legal practitioners have taken the view that it proclaimed a foreclosure on any impeachment of, inter alia, sections of the Sexual Offences Act which provide for mandatory minimum sentences.

21. Be that as it may, a court has discretion in sentencing. And, sentencing is part of due process and fair trial. Therefore, to the extent that a provision of law takes away the discretion of the court in sentencing, it offends the tenets of fair trial, and therefore, unconstitutional. Mandatory sentence for this purpose includes mandatory minimum sentence, for it deprives the court of discretion in sentencing, and such provision should be read down to provide discretion. In my view, the interpretation tool or technique of read-in or read-down is no longer strange or foreign in our legal system. See clause 7 of Transitional Provisions, the sixth schedule of theConstitution.

Legislative intervention needed 22. Nevertheless, it is tidier if legislative intervention provides minimum sentences- not mandatory minimum sentences- with discretion to the court to impose appropriate sentence in light of circumstances of the individual case- accordingly, the court may impose less or more than or the minimum sentence prescribed. In jurisdictions where legislative sentencing scheme is constitutionally justified have adopted presumptive or prescriptive minimum- not mandatory minimum- sentences. See Australia and South Africa.

Of section 333(2) of CPC 23. According to section 333(2) of the Criminal Procedure: -“Subject to the provisions of section 38 of the Penal Code (cap 63) Every sentence shall be deemed to commence from and to include the whole of the day of, the date on which it was pronounced, except where otherwise provided in this Code.Provided that where the person sentenced under subsection (1) has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody.”

24. The requirement in section 333(2) in relation to time spent in custody is repeated in other sections of the law such as section 137I (2) (a) of the CPC that: -(2)In passing a sentence, the court shall take into account—(a)The period during which the accused person has been in custody;

25. Court’s duty under, and the object of section 333(2) of the CPC has been explained in the Judiciary Sentencing Policy Guidelines (under clauses 7. 10 and 7. 11) as follows:“The provision to section 333 (2) of the Criminal Procedure Code obligates the court to take into account the time already served in custody if the convicted person had been in custody during the trial. Failure to do so impacts on the overall period of detention which may result in an excessive punishment that is not proportional to the offence committed. In determining the period of imprisonment that should be served by an offender, the court must take into account the period in which the offender was held in custody during the trial.”

26. The importance of and court’s duty under section 333(2) of the CPC in sentencing has also been buttressed in judicial pronouncements. See the Court of Appeal in Ahamad Abolfathi Mohammed & Another vs. Republic [2018] eKLR that, courts must give real effect to the section in sentencing; and that merely stating that you have taken account of time spent in custody is not sufficient if the sentence, in light of the overall circumstances of the case, does not show that the period spent in custody prior to sentencing had been taken account of.

27. Accordingly, failure to take account of time spent in custody as provided in the proviso to section 333(2) of the CPC opens the accused to a real risk of serving a more severe sentence than is; lawfully prescribed or proportional to the offence. And, a convicted person who so surfers may found an action ‘’for redress of a denial, violation, or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights’’ under article 23(1) and 165(3)(b) of theConstitution.

Applying the test 28. From the trial court typed proceedings, judgment, and sentence, the following relevant dates are discernible; the accused was arraigned in court on 5/6/2017 and was sentenced on October 16, 2017 to serve 10 years’ imprisonment.

29. The appellant herein was convicted of the offence of attempted defilement contrary to section 9(1) as read with section 9(2) of the SOA.

30. According to section 9(1) of the Sexual Offences Act No 3 of 2006:"A person who attempts to commit an act which would cause penetration with a child is guilty of an offence termed attempted defilement.’’

31. And, as per section 9(2) of the Sexual Offences Act No 3 of 2006:"A person who commits an offence of attempted defilement with a child is liable upon conviction to imprisonment for a term of not less than ten years’’.

32. In passing sentence, the trial court (Hon H Ng’ang’a (SRM) stated as follows: -“Mitigation noted. Accused treated as first offender. The offence attracts a minimum mandatory sentence of 10 years to deter offences of such heinous crimes.I sentence the accused to serve 10 years’ imprisonment. Right of appeal within 14 days explained to the accused.’’

33. First, it appears the trial court imposed a sentence of 10 years’ imprisonment because it was minimum mandatory sentence. It did not exercise discretion. Such failure to exercise discretion on the basis that the law prescribes for mandatory sentence has real potentiality of prejudice to the accused. Nonetheless, it is debatable whether the terms used in the penalty clause"is liable upon conviction to imprisonment for a term of not less than ten years’’means mandatory minimum sentence. The only provision in SOA where the term “shall” is used is section 8(2). Food for thought.

34. Secondly, there is nothing that shows that the trial court took account of the time spent in custody in passing the sentence of 10 years’ imprisonment. The appellant did not therefore, have the advantage of section 333(2) of the CPC.

35. The overall impression, therefore, is that the sentence was excessive, thus, the appellant is entitled to redress.

36. In the circumstances and taking into account the nature of the offence, the fact that the appellant is a young man and first offender, I reduce the sentence to 8 years’ imprisonment to run from when he was first arraigned before the trial court, that is June 5, 2017.

37. The appeal herein succeeds to that extent.

38. It is so ordered.

DATED, SIGNED, AND DELIVERED AT NAROK THROUGH MICROSOFT TEAMS ONLINE APPLICATION, THIS 15TH DAY OF DECEMBER, 2022. F. GIKONYO M.JUDGEIn the Presence of:Ms. Torosi for DPPThe AppellantKasaso – C/A