[2021] KEHC 6319 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

Coram: D. K. Kemei – J

CRIMINAL REVISION NO. 9 OF 2020

PATRICK MUTYANGULU MUIA.......APPLICANT

VERSUS

REPUBLIC.........................................RESPONDENT

RULING

1. The Applicant herein filed an application on 10/03/2020 seeking for review of sentence that had been passed by Hon. Kahuya SRM in Machakos Chief Magistrate’s Court criminal case number 2021 of 2014 dated 28/04/2016 in which the applicant was sentenced to serve fifteen years’ imprisonment for the offence of defilement contrary to section 8(1) as read with section 8(4) of the Sexual Offences Act No. 3 of 2006.

2. Vide his Memorandum of Revision (sic) the Applicant contends that the sentence meted out on him did not take into account the period he had spent in custody which comprises of a period of one year and four months. He relies on the provisions of section 333(2) of the Criminal Procedure Code and now prays that the sentence be ordered to commence from the time of arrest. The Applicant finally maintained that he is a family man and the sole bread winner for his young family who depend on him for support. He also pointed out that he has not been idle in prison as he has already earned skills in masonry.

3. Parties agreed to dispose the application by way of written submissions.

4. The Applicant vide submissions filed on 20/01/2021 submitted that the trial court’s harsh sentence should be reviewed. He placed reliance on the Supreme Court’s decision in Francis Karioko Muruatetu and another V. Republic [2017] eKLRand urged the court to set aside the sentence of 15 years’ imprisonment and substitute it with a commensurate one which takes into the provisions of section 333(2) of the Criminal Procedure Code.

5. Mr. Mwongera learned counsel for the Respondent vide submissions dated 3/03/2021 submitted that indeed the applicant had been in custody since the date of arrest namely 27/12/2014 and remained in custody until the date of sentence namely 28/04/2016 which totals to a period of one year and four months. Learned counsel submitted that the said period be factored in the review of the sentence. Reliance was placed in the case of Bernard Kimani Gacheru Vs. Republic [2002] eKLR.

6. I have given due consideration to the application for revision of sentence as well as the submissions. The Applicant is seeking a review of his sentence and has put a lot of emphasis on the provisions of section 333(2) of the Criminal Procedure Code. The applicant had been convicted for the offence of defilement contrary to section 8(1) as read with section 8(4) of the Sexual Offences Act No. 3 of 2006 and sentenced to serve 15 years’ imprisonment. It is not in dispute that the Applicant is not appealing against conviction but on sentence only. It is also not in dispute that the Applicant remained in custody for the entire duration of the trial. It is also not in dispute that pursuant to section 333(2) of the Criminal Procedure Code the period spent in custody must be factored so as to conform with section 38 of the Penal Code. It is also not in doubt that under section 8(4) of the Sexual Offences Act No. 3 of 2006 a person found guilty of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years. That being the position, the only issue for determination is whether the revision sought is merited.

7. It is trite law that sentencing is a matter for the discretion of a trial court. The Court of Appeal as early as 2002 in the case of Bernard Kimani Gacheru Vs Republic [2002] held as follows:

“It is now settled law, following several authorities by this court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal, the appellate court will not easily interfere with sentence unless that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor, or took into account some wrong material, or acted on a wrong principle. Even if the Appellate court feels that the sentence is heavy and that the Appellate court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless anyone of the above matters already stated is shown to exist.’’

8. The above position had been the case until the arrival of statutes which provided for minimum sentences such as the Sexual Offences Act No.3 of 2006 whereby the sentences are staggered according to the age of the victim of the sexual offence under section 8 thereof. This then removed the discretion bestowed upon the trial court to exercise before passing sentences upon the offenders. The trial court’s discretion was thus taken away and which has been the position until the Supreme Court’s decision in Francis Karioko Muruatetu and Another Versus Republic [2017] eKLRwhich held that mandatory death sentence prescribed for the offence of murder by section 204 of the Penal Code was unconstitutional as the mandatory nature deprives courts of their legitimate jurisdiction to exercise discretion not to impose the death sentence in an appropriate case. It went on to hold that mandatory sentences fail to conform to the tenets of fair trial that accrue to the accused person under Article 25 of the constitution.

9. Being guided by the above decision, the Court of Appeal in the cases of Christopher Ochieng Vs Republic [2018] eKLR and Jared Koita Injiri Vs Republic [2019] eKLRwhere both appellants had been charged with sexual offences under section 8 of the Sexual Offences Act formed the view that the constitutionality of the mandatory sentences meted out on the appellants raised questions of law and proceeded to interfere with the sentences appropriately. In the first case above, where the appellant had been sentenced to 20 years imprisonment, the same was reduced to ten years imprisonment while in the second case, the appellant who had been sentenced to life imprisonment had the sentenced reduced to thirty years imprisonment.

10. The applicant has now implored this court to review the sentence imposed by the trial court and to factor the period spent in custody and to be guided by the decision of the Supreme Court in Francis Karioko Muruatetu and Another (supra). It is noted that the applicant had been charged under section 8(1) as read with section 8(4) of the Sexual Offences Act wherein the minimum sentence provided for is 15 years’ imprisonment. Indeed, the Applicant was sentenced to the said term of imprisonment. Being guided by the Court of Appeal decision in the above cases of Christopher Ochieng Vs Republic [2018] and Jared Koita Injiri Vs Republic [2019], I am persuaded to interfere with the aforesaid sentence. The circumstances of the case appear rather tragic in that the appellant and the victim had been living as a couple and they already have two children and that the victim is currently residing at the appellant’s home as his spouse and taking care of the two children. The victim had testified for both the prosecution and defence. The applicant also maintains that the victim whom he claims to be his wife has been visiting him with the children while he is serving his sentence. I note from the child health card that the victim was born on 20/01/1997 and that the date of the offence is said to be 26/12/2014. This then means that the victim was approaching the age of 18 years old but was only shy by only twenty days. I find the age to have been somehow on the border line. I am satisfied that the applicant merits a review of his sentence. I am of the view that a sentence of ten years’ imprisonment would be suitable in the circumstances and which is to commence from the date of arrest namely 27/12/2014. It is believed that the applicant has learnt his lesson for having purported to marry an underage girl and engaging in sex with her.

11. In light of the foregoing observations, the application for review has merit. The same is allowed. The sentence imposed by the trial court of 15 years’ imprisonment is hereby set aside and substituted with a sentence of ten (10) years’ imprisonment from the date of arrest namely 27/12/2014.

It is so ordered.

DATED AND DELIVERED AT MACHAKOS THIS 9TH DAY OF JUNE, 2021.

D. K. Kemei

Judge