[2023] KEHC 25066 (KLR)

Mutwika v Republic (Miscellaneous Criminal Application 4 of 2023) [2023] KEHC 25066 (KLR) (10 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25066 (KLR)

Republic of Kenya

In the High Court at Kibera

Miscellaneous Criminal Application 4 of 2023

DR Kavedza, J

November 10, 2023

Between

Mutinda Ngundo Mutwika

Applicant

and

Republic

Respondent

Ruling

1. The Applicant moved this court vide application dated 22nd September 2022 seeking orders for a re-sentence hearing. The Applicant was convicted for the offence of defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act No. 3 of 2006. He was sentenced to serve life imprisonment by Hon. T. Murigi, SPM on 18th February, 2011. He then preferred an appeal to the High Court in Nairobi HCCRA NO. 179 of 2013 in which the sentence was upheld by Ngenye Macharia J. The Judge while dismissing the appeal stated that the prosecution proved its case beyond reasonable doubt.

2. He has now applied for resentencing pursuant to the Court of Appeal decision in Maingi & 5 others v Director of Public Prosecutions & another (Petition E017 of 2021) [2022] KEHC 13118 (KLR) (17 May 2022) (Judgment)

3. Ms. Maureen Akunja counsel for the respondent in her submissions contended that the court has jurisdiction to entertain the applicant’s application since the applicant was sentenced to life imprisonment and considering the various jurisprudence of the Kenyan courts directing that resentencing hearing would be entertained. The learned counsel emphasized that the application is therefore properly before court.

4. The application before me is for resentencing. Re-sentence hearing is neither a hearing de novo nor an appeal. It is a proceeding undertaken within the court’s power to review the sentence only. The court will ordinarily check the legality or propriety or appropriateness of the sentence. The relevant considerations in the proceeding inter alia, are the penalty law, mitigating or aggravating factors and the objects of punishments. In re-sentencing in proceedings, conviction is not in issue.

5. The applicant’s case is that the sentence meted on him was harsh and excessive considering the circumstances and recent developments of the law. He argued that the decision in Maingi & 5 others directed that convicts of sexual offences can petition the High Court for re-sentencing.

6. The decisional law in Maingi & Others as well as Muruatetu brought about resentencing hearings. It opened a pandoras box. Cases of resentencing are now becoming the order of the day. Yet no strategic procedure was formulated to guide such hearings, confusion may not be avoided and sometimes embarrassment may ensure.

7. I have considered the sentence imposed on the Applicant by the trial court. There are certain considerations in sentencing. The penalty must fit the crime. The age of the offender is relevant. The objectives of punishment should be met. It is not right that someone who offended the society should go scot free, or escape with trivial sentence. At the same time he should not be penalized beyond what his mislead befits. Punishment should also offer hope for rehabilitative. In passing the sentence the court will not lose sight of the pre-trial and during trial incarceration. The court is also alive to the fact that prison life is not easy.

8. I have also considered the age of the child who was defiled. From the evidence on record, the Applicant went to the minors house and found her alone. He then closed the door and lowered his trouser, he moved closer to the minor, undressed her then covered her mouth and did bad manners to her on the sitting room sofa. According to the facts of the case, the applicant took advantage of the minor after discovering that she was alone is the house. He was later discovered and prosecuted. The applicant knew that the complainant was a child and was still at school but went ahead to have canal knowledge of her. This is the kind of conduct that the Sexual Offence Act was intended to punish. The sentences enacted in the Act reflect a deliberate intention by the legislature to protect the rights of the child and to emphasize the seriousness of such violations of children.

9. The age of the appellant was not stated while the age of the victim was proved to be 12 years. It came through the evidence of the prosecution witnesses that the Applicant and the victim lived in the same locality and were known to each other.

10. In aggravation the applicant used unfair advantage to secure and satisfy his sexual desires on the minor. This court considers that the offence was quite an egregious act on a child. In that respect there’s in need to protect children from sexual predators.

11. The appellant in his submissions is very remorseful for what he did. He admits that the actions brought shame to him and his family. He further states that he has used the opportunity to examine himself through rehabilitation programs which are offered by prison Authorities.

12. In light of the various judicial decisions, the mandatory minimum sentence can be vacated in appropriate case. Further pursuant to the provisions of section 216 and 329 of the Criminal Procedure Code (cap 75) Laws of Kenya, mitigation is part of the process under section 329 which provides that the court may before passing sentence, receive such evidence as it thinks fit in order to inform itself as to the proper sentence to be passed.

13. Thus, in my view, section 329 of the Criminal Procedure Code, gives the judges and magistrates, in appropriate cases to consider mitigation and mete out a sentence that fits the offence committed despite another sentence being provided for under the Act in which the offence is prescribed.

14. In that regard, I find life imprisonment for a first offender being somewhat too stiff and shatters all the hopes of the appellant for rehabilitation or having another chance to start afresh. Further, there has been no definition of what life imprisonment means. It would be an injustice to keep certain offenders for an indefinite period of time, when the circumstances of their cases suggest that they should at some point be given a chance to start afresh.

15. Considering all the above circumstances and the justice of this case, the minimum mandatory sentence of life imprisonment is hereby vacated. I hereby resentence the appellant to 20 years imprisonment from the date of his arrest being 3rd June 2008. It is so ordered.

RULING DATED AND DELIVERED VIRTUALLY THIS 10TH DAY OF NOVEMBER, 2023. D. KAVEDZAJUDGEIn the presence of:Appellant – AbsentJoy – Court Assistant