[2021] KEHC 7127 (KLR)

[2021] KEHC 7127 (KLR)

The court found that, although the Sexual Offences Act prescribes a mandatory minimum sentence for defilement of a child aged between 12 and 15 years, the Supreme Court in Muruatetu and subsequent Court of Appeal decisions have held that mandatory minimum sentences are unconstitutional as they fetter judicial...

Source-derived case information.

Citation
[2021] KEHC 7127 (KLR)
Parties
Appellant: Patrick Gitonga Mikwa; Respondent: Republic
Court
High Court
Court Station
High Court at Meru
Jurisdiction
Kenya
Judgment Date
13 May 2021
Case Number
Criminal Appeal 58 of 2020
Procedural Posture
Criminal Appeal / Judgment on Appeal
Outcome
appeal allowed in part; sentence reduced
Judges
TW Cherere
Legal Topics
Defilement, Sentencing Discretion, Sexual Offences Act, Mandatory Sentences, Constitutional Rights, Appeals Process
Source Language
english
Criminal Law Defilement Sentencing Discretion Sexual Offences Act Mandatory Sentences Constitutional Rights Appeals Process

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Summary, issues, holding and outcome

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Parties

Patrick Gitonga Mikwa

Appellant

Republic

Respondent

Procedural Posture

Criminal Appeal / Judgment on Appeal

Legal Issues

  1. 1 Whether the sentence imposed for defilement was harsh and excessive.
  2. 2 Whether the appellant was entitled to a lesser sentence under Article 50(2)(p) of the Constitution.
  3. 3 Whether the mandatory minimum sentence under section 8(3) of the Sexual Offences Act is constitutional.

Ratio Decidendi

The court found that, although the Sexual Offences Act prescribes a mandatory minimum sentence for defilement of a child aged between 12 and 15 years, the Supreme Court in Muruatetu and subsequent Court of Appeal decisions have held that mandatory minimum sentences are unconstitutional as they fetter judicial discretion. The court considered the appellant's status as a first offender and the psychological impact on the minor victim. It concluded that the original sentence of 25 years was excessive in the circumstances and substituted it with a sentence of 10 years' imprisonment, to run from the original date of sentencing.

Court Disposition

appeal allowed in part; sentence reduced

Orders

  • The 25-year sentence imposed on the appellant is set aside.
  • The appellant is sentenced to ten (10) years' imprisonment from 5th February, 2019.