[2024] KEHC 6463 (KLR)
The High Court found that the mandatory life sentence imposed on the petitioner for defilement was unconstitutional, as it amounted to unjustifiable discrimination and violated the principle of equality before the law under Article 27 of the Constitution. The court relied on the Court of Appeal’s decisions in Julius...
Source-derived case information.
- Citation
- [2024] KEHC 6463 (KLR)
- Parties
- Applicant: Gerison Mwiti; Respondent: Director Of Public Prosecution
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Petition E006 of 2024
- Procedural Posture
- Constitutional Petition / Judgment
- Outcome
- petition allowed in part; life sentence set aside and substituted with 15 years imprisonment from date of arrest.
- Judges
- TW Cherere
- Legal Topics
- Defilement Sentencing, Mandatory Sentences, Equality Before Law, Resentencing Principles
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Gerison Mwiti
Applicant
Director Of Public Prosecution
Respondent
Procedural Posture
Constitutional Petition / Judgment
Legal Issues
- 1 Whether the mandatory life sentence for defilement under section 8(2) of the Sexual Offences Act is unconstitutional due to its indeterminate nature.
- 2 Whether the petitioner is entitled to resentencing in light of recent jurisprudence.
Ratio Decidendi
The High Court found that the mandatory life sentence imposed on the petitioner for defilement was unconstitutional, as it amounted to unjustifiable discrimination and violated the principle of equality before the law under Article 27 of the Constitution. The court relied on the Court of Appeal’s decisions in Julius Kitsao Manyeso v Republic and Egrone v Republic, which held that mandatory indeterminate life sentences are repugnant to constitutional principles and that courts have discretion to resentence affected persons. Consequently, the court substituted the life sentence with a determinate term of fifteen years’ imprisonment, effective from the date of arrest.
Court Disposition
petition allowed in part; life sentence set aside and substituted with 15 years imprisonment from date of arrest.
Orders
- The life sentence imposed on the petitioner is set aside.
- The petitioner is resentenced to fifteen (15) years imprisonment effective from 30th May, 2020.
Full Case Text
Judgment text and source record
21 paragraphs
Mwiti v Director of Public Prosecution (Petition E006 of 2024) [2024] KEHC 6463 (KLR) (30 May 2024) (Judgment)
Neutral citation: [2024] KEHC 6463 (KLR)
Republic of Kenya
In the High Court at Meru
Petition E006 of 2024
TW Cherere, J
May 30, 2024
Between
Gerison Mwiti
Petitioner
and
Director Of Public Prosecution
Respondent
Judgment
1. Petitioner was sentenced in Nkubu PM CR. Case No. 19 of 2020 to serve life imprisonment for the offence of defilement contrary to section 8(1) as read with Section 8(2) of the Sexual Offences. His appeal to the High Court vide Gerishon Mwiti v Republic [2022] eKLR was unsuccessful.
2. Petitioner prays for resentence on the ground that the life imprisonment is indeterminate and unconstitutional.
3. Ms. Rotich for the Respondent proposed that Petitioner be resentenced to 30 years’ imprisonment.
4. The Court of Appeal in Julius Kitsao Manyeso v Republic [2020] eKLR has held that imposition of a mandatory indeterminate life sentence, is an unjustifiable discrimination, unfair and repugnant to the principle of equality before the law under Article 27 of theConstitution.
5. In Egrone v Republic (Criminal Appeal 86 of 2019) [2024] KECA 206 (KLR) (29 February 2024) (Judgment), the Court of Appeal resentenced the Appellant to 15 years for a similar offence as the one petitioner was convicted of.
6. Having considered the petition, the life sentence imposed on the Petitioner is substituted with fifteen (15) years imprisonment from 30th May, 2020 when he was arrested.
DELIVERED AT MERU THIS 30th DAY OF May 2024WAMAE. T. W. CHEREREJUDGEAppearancesCourt Assistants - Kinoti/MunenePetitioner - Present in personFor the DPP - Ms.Rotich ( PC-1)