[2023] KEHC 23636 (KLR)
The court found that the mandatory minimum sentence imposed under Section 8(4) of the Sexual Offences Act is unconstitutional to the extent that it removes judicial discretion, as established in Maingi & 5 others v Director of Public Prosecutions & another. However, the petitioner failed to provide evidence...
Source-derived case information.
- Citation
- [2023] KEHC 23636 (KLR)
- Parties
- Applicant: Abel Mwiti; Respondent: Director Of Public Prosecution
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Petition E238 of 2023
- Procedural Posture
- Constitutional Petition / Judgment
- Outcome
- petition partly allowed; sentence reviewed
- Judges
- TW Cherere
- Legal Topics
- Defilement Offence, Mandatory Minimum Sentences, Sentencing Discretion, Constitutionality of Statutes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Abel Mwiti
Applicant
Director Of Public Prosecution
Respondent
Procedural Posture
Constitutional Petition / Judgment
Legal Issues
- 1 Whether the mandatory minimum sentence under Section 8(4) of the Sexual Offences Act is constitutional in light of Article 28 of the Constitution.
- 2 Whether the petitioner is entitled to a review of sentence based on his status as a student and the absence of material for Section 333(2) of the Criminal Procedure Code.
Ratio Decidendi
The court found that the mandatory minimum sentence imposed under Section 8(4) of the Sexual Offences Act is unconstitutional to the extent that it removes judicial discretion, as established in Maingi & 5 others v Director of Public Prosecutions & another. However, the petitioner failed to provide evidence regarding the date of arrest, precluding the application of Section 333(2) of the Criminal Procedure Code. Consequently, the court exercised its discretion to resentence the petitioner to 10 years imprisonment from the date of conviction, balancing the need for proportionality in sentencing with the absence of material to warrant further reduction.
Court Disposition
petition partly allowed; sentence reviewed
Orders
- The petitioner is resentenced to serve 10 years imprisonment from the date of conviction on 17th September, 2021.
Full Case Text
Judgment text and source record
21 paragraphs
Mwiti v Director of Public Prosecution (Petition E238 of 2023) [2023] KEHC 23636 (KLR) (12 October 2023) (Judgment)
Neutral citation: [2023] KEHC 23636 (KLR)
Republic of Kenya
In the High Court at Meru
Petition E238 of 2023
TW Cherere, J
October 12, 2023
Between
Abel Mwiti
Petitioner
and
Director Of Public Prosecution
Respondent
Judgment
1. Petitioner has petitioned this court for review of the 15-year imprisonment term imposed on him for the offence of defilement contrary to section 8 (1) as read with section 8 (4) of the Sexual Offences Act (the Act) sentence on the ground that was a 3rd year KMTC student at the time of his arrest.
2. Ms. Rita for the DPP opposed the application on the ground that the Supreme Court is yet to decide on the constitutionality of sentences imposed under the Sexual Offences.
3. I have observed that Petitioner was sentenced to the mandatory minimum sentence under Section 8(4) of the Act.
4. Odunga J (as he then was) in the case of Maingi & 5 others v Director of Public Prosecutions & another (Petition E017 of 2021) [2022] KEHC 13118 (KLR) held that to the extent that the Sexual Offences Act prescribes mandatory minimum sentences, with no discretion to the trial court to determine the appropriate sentence to impose, such sentences fell afoul of Article 28 of the Constitution
5. Petitioner has not annexed any document or pleaded the date he was arrested and there is therefore no material before the court upon which the provisions of Section 333(2) of the Criminal Procedure Code can be applied in his favour.
6. In the end, Petitioner is thus resentenced to serve 10 years imprisonment from the date of his conviction on 17th September, 2021
DELIVERED AT MERU THIS 12TH DAY OF OCTOBER2023WAMAE. T. W. CHEREREJUDGEAppearancesCourt Assistant - Kinoti/MunenePetitioner - PresentFor the DPP - Ms.Rita ( PC-1)