[2019] KEHC 8331 (KLR)
The court found that, although the Supreme Court in the Muruatetu case questioned the constitutionality of mandatory sentences and called for legislative guidelines on life imprisonment, it did not specifically address life sentences under the Sexual Offences Act. The court held that, in the absence of enacted...
Source-derived case information.
- Citation
- [2019] KEHC 8331 (KLR)
- Parties
- Petitioner: Mwamlongo Chichoro Mwanembe; Respondent: Director of Public Prosecution
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Constitutional Petition 32 of 2018
- Procedural Posture
- Constitutional Petition / Judgment
- Outcome
- petition dismissed
- Judges
- DO Ogembo
- Legal Topics
- Right to Fair Trial, Sentencing Guidelines, Life Imprisonment, Judicial Review
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mwamlongo Chichoro Mwanembe
Petitioner
Director of Public Prosecution
Respondent
Procedural Posture
Constitutional Petition / Judgment
Legal Issues
- 1 Whether the court has jurisdiction to review and resentence a petitioner serving a life sentence for defilement in light of the Supreme Court decision in the Muruatetu case.
- 2 Whether the Muruatetu case applies to life sentences imposed under the Sexual Offences Act.
Ratio Decidendi
The court found that, although the Supreme Court in the Muruatetu case questioned the constitutionality of mandatory sentences and called for legislative guidelines on life imprisonment, it did not specifically address life sentences under the Sexual Offences Act. The court held that, in the absence of enacted guidelines or a legislative framework defining life imprisonment, it lacks jurisdiction and mandate to interfere with or review the petitioner's life sentence. The petition was therefore dismissed as premature, with the court advising that the petitioner may seek review once Parliament has acted on the Supreme Court's directive and relevant guidelines are in place.
Court Disposition
petition dismissed
Orders
- The petition is dismissed.
- The petitioner may seek review after Parliament enacts guidelines on life imprisonment.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
CONSTITUTIONAL PETITION NO. 32 OF 2018
IN THE MATTER OF: CONSTITUTIONAL PETITION UNDER SRTICLE 19, 20, 21 (1) (4), 22 (3) (C) OF THE CONSTITUTION OF KENYA 2010
AND
IN THE MATTER OF: ARTICLES 24, 25, 27, 28, 35, 48, 50(2) (Q), 258 AND 259 OF THE CONSTITUTION
AND
IN THE MATTER OF: SECTION 8(2), 36 OF THE SEXUAL OFFENCES ACT AND SECTION 109 OF THE EVIDENCE ACT AND SECTION 144 AS READ WITH SECTION 150 OF THE CPC
AND
IN THE MATTER OF: CONTRAVENTION OF FUNDAMENTAL RIGHTS AND FREEDOM OF INDIVIDUAL AND ARTICLE 50(2) (Q) AND 22(3)(A) OF THE CONSTITUTION
BETWEEN
MWAMLONGO CHICHORO MWANEMBE........PETITIONER
VERSUS
DIRECTOR OF PUBLIC PROSECUTION.........RESPONDENT
JUDGMENT
1. The Petitioner filed a petition herein on 15th March, 2018 requesting for a case review and resentencing under Article 50(2) of the constitution. The Petitioner was charged with defilement of a child contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act No. 3 of 2006. He was convicted and sentenced to serve 25 years in prison. He appealed. The Court of Appeal dismissed his appeal but enhanced the sentence to life imprisonment.
2. With the current petition the Petitioner is seeking a lenient sentence based on the facts of Muruatetu case.
3. The Director of Public Prosecution has opposed the petition on the grounds that the said Muruatetu case did not address the issue of life imprisonment. The court directed that Parliament should enact an Act to determine what amount of life imprisonment. Ms. Ogega for the Director of Public Prosecution submitted that the life sentence meted herein to the Petitioner is still good, and that the Petitioner should wait for guidelines to be prepared by Parliament on what constitutes life sentence.
Determination
4. I have considered the petition and submissions of parties. The Petitioner is serving life sentence. Life sentence currently means that the Petitioner will live his entire life in jail. Following the said Muruatetu case the Supreme Court directed Parliament to address what constitutes life imprisonment for various cadres of prisoners, considering their age, progress in prison, health, etc. and so on. It has been submitted authoritatively that the Attorney General has since constituted a thirteen (13) member Task Force to come up with a clear framework of what constitutes life sentence. Once that is done the Petitioner can come back to court for a review. As at now the minimum sentence under the offence committed is life sentence. The prisoner has been in prison for eight (8) years since he was arrested, and five (5) years since he was convicted.
5. It is the finding of this court that it lacks the jurisdiction and mandate to interfere with the said life sentence. This petition is a little premature. The Petitioner should come for a review after the aforesaid Task Force has made its recommendation and Parliament has acted on the same.
6. For those reasons the petition herein is dismissed.
Dated, Signed and Delivered in Mombasa this 4th day of April, 2019.
E. K. OGOLA
JUDGE
In the presence of:
Mr. Isaboke for DPP
Petitioner in person
Mr. Kaunda Court Assistant