[2022] KEHC 14654 (KLR)
The court found that the trial Magistrate had already considered the petitioner's mitigation, including the period spent in pre-sentence custody, when imposing the sentence of 20 years imprisonment. The law under Section 8(2) of the Sexual Offences Act prescribes a mandatory life sentence for defilement of a child...
Source-derived case information.
- Citation
- [2022] KEHC 14654 (KLR)
- Parties
- Petitioner: Johnston Makau Mwandikwa; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Petition 219 of 2019
- Procedural Posture
- Constitutional Petition / Judgment
- Outcome
- petition dismissed
- Judges
- A. Ong’injo
- Legal Topics
- Sentencing Principles, Pre Sentence Custody, Sexual Offences, Defilement, Appeal Review, Mitigation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Johnston Makau Mwandikwa
Petitioner
Republic
Respondent
Procedural Posture
Constitutional Petition / Judgment
Legal Issues
- 1 Whether the petitioner is entitled to have the pre-sentence custody period included in his sentence.
- 2 Whether the trial court properly exercised its discretion in sentencing the petitioner to 20 years imprisonment instead of life imprisonment as provided by law.
Ratio Decidendi
The court found that the trial Magistrate had already considered the petitioner's mitigation, including the period spent in pre-sentence custody, when imposing the sentence of 20 years imprisonment. The law under Section 8(2) of the Sexual Offences Act prescribes a mandatory life sentence for defilement of a child aged eleven years or less, but the trial court exercised leniency by imposing a lesser sentence. The appellate court had previously upheld the sentence, finding no error or loophole in the trial court's reasoning. Consequently, there was no legal basis to further reduce or alter the sentence by including the pre-sentence custody period, and the petition was dismissed.
Court Disposition
petition dismissed
Orders
- The petition is dismissed.
- No orders as to further reduction of sentence.
Full Case Text
Judgment text and source record
24 paragraphs
Mwandikwa v Republic (Petition 219 of 2019) [2022] KEHC 14654 (KLR) (24 October 2022) (Judgment)
Neutral citation: [2022] KEHC 14654 (KLR)
Republic of Kenya
In the High Court at Mombasa
Petition 219 of 2019
A. Ong’injo, J
October 24, 2022
Between
Johnston Makau Mwandikwa
Petitioner
and
Republic
Respondent
Judgment
1. The petitioner herein sought that the court includes his pre-sentence custody period in the sentence meted out in the trial court.
2. The petition was supported by affidavit sworn by the petitioner.
3. A perusal of trial courts sentencing proceedings indicates that the Petitioner was sentenced to 20 years imprisonment after the trial Magistrate considered his mitigations, the fact that he is a 1st Offender and the fact that he had spent considerable time behind bars during trial.
4. The trial Magistrate however observed that the offence was serious & applicant’s actions were callous considering that the victim of his actions was a girl aged 10 years who had been thrust to the realm of adulthood & her innocence taken away.
5. When the applicant lodged appeal in HCCRA No. 60 of 2013 against sentence the Hon. Justice Njoki said that the trial Magistrate left nothing to chance & meticulously addressed all issues he was required to before he sentenced the appellant. The Judge observed that no loophole was left which she could resort to so as to exercise discretion in favour of the appellant. She upheld the sentence of 20 years imprisonment imposed against the appellant.
6. I noticed that in Appeal no. 60 of 2013 the Office of Director of Public Prosecution had filed a notice dated 27/08/2018 to re-enhance sentence under Section 354(3) (a) (i) & (ii) but having failed to address the same in their submissions the Judge concluded that they had abandoned the same.
7. Section 8(2) of the Sexual Offences Act under which the applicant was charged & convicted provides:-“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. The trial Magistrate therefore exercised leniency in sentencing the applicant to 20 years imprisonment instead of life imprisonment mention any other higher sentence.
9. As stated by Hon. Lady Justice Njoki J in CR. Appeal No. 60 of 2013 there is no loophole to unsettle the finding of the trial Magistrate on sentencing. Petition herein is therefore dismissed.
DATED, SIGNED AND DELIVERED IN OPEN COURT THIS 24TH DAY OF OCTOBER 2022HON. LADY JUSTICE A. ONG’INJOJUDGEIn the presence of:-Ogwel - Court assistantMr. Ngiri for statePetitioner – present in personHON. LADY JUSTICE A. ONG’INJO J24/10/2022