[2022] KEHC 15822 (KLR)
The court found that the imposition of a mandatory minimum sentence under the Sexual Offences Act, without allowing the trial court any discretion to consider the circumstances of the offender or the offence, contravenes Article 28 of the Constitution, which guarantees the right to dignity. The court noted that the...
Source-derived case information.
- Citation
- [2022] KEHC 15822 (KLR)
- Parties
- Applicant: Francis Musyoka Nzau; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Petition E027 of 2022
- Procedural Posture
- Constitutional Petition / Judgment
- Outcome
- Petition allowed. Life sentence substituted with 20 years' imprisonment from December 19, 2006.
- Judges
- TW Cherere
- Legal Topics
- Defilement, Sentencing Principles, Mandatory Minimum Sentences, Constitutional Right to Dignity
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Francis Musyoka Nzau
Applicant
Republic
Respondent
Procedural Posture
Constitutional Petition / Judgment
Legal Issues
- 1 Whether the mandatory minimum sentence for defilement under the Sexual Offences Act violates the right to dignity under Article 28 of the Constitution.
- 2 Whether the petitioner is entitled to resentencing based on the period already served and evidence of reform.
Ratio Decidendi
The court found that the imposition of a mandatory minimum sentence under the Sexual Offences Act, without allowing the trial court any discretion to consider the circumstances of the offender or the offence, contravenes Article 28 of the Constitution, which guarantees the right to dignity. The court noted that the petitioner had already served 16 years in custody and had demonstrated evidence of reform. Consequently, the court exercised its discretion to substitute the life sentence with a determinate term of 20 years' imprisonment, commencing from the date of arrest, December 19, 2006.
Court Disposition
Petition allowed. Life sentence substituted with 20 years' imprisonment from December 19, 2006.
Orders
- The life sentence imposed on the petitioner is substituted with a 20-year imprisonment term effective from December 19, 2006.
Full Case Text
Judgment text and source record
20 paragraphs
Nzau v Republic (Petition E027 of 2022) [2022] KEHC 15822 (KLR) (1 December 2022) (Judgment)
Neutral citation: [2022] KEHC 15822 (KLR)
Republic of Kenya
In the High Court at Meru
Petition E027 of 2022
TW Cherere, J
December 1, 2022
Between
Francis Musyoka Nzau
Petitioner
and
Republic
Respondent
Judgment
1. Petitioner was convicted for the offence of defilement contrary to section 8(1) as read with section 8 (2) of the Sexual Offences Act and was sentenced to life imprisonment.
2. Petitioners’ appeals to the High Court and to the Court of Appeal vide HCCRA No 78 of 2008 and Criminal Appeal No 78 of 2014 were dismissed on October 22, 2013 and July 9, 2015 respectively.
3. Applicant seeks resentence for resentence on the grounds among others that he has reformed. Ms Mwaniki, learned counsel for the state did not oppose the petition.
4. The extent that the Sexual Offences Act prescribe minimum mandatory sentences with no discretion to the trial court to determine the appropriate sentence to impose, falls foul of article 28 of the Constitution which provides that “every person has inherent dignity and the right to have that dignity respected and protected”.
5. The record shows that petitioner was arrested on December 19, 2006 and has been in custody for a cumulative period of 16 years. From the foregoing analysis, I order that the life sentence be and is hereby substituted with a 20-years imprisonment term from December 19, 2006.
DELIVERED AT MERU THIS 01ST DAY OF DECEMBER 2022WAMAE. T. W. CHEREREJUDGEIn the presence of-Court Assistant - KinotiApplicant - PresentFor the State - Ms. Mwaniki