[2020] KEHC 7582 (KLR)
The court found that, following the Supreme Court's decision in Muruatetu, mandatory sentences are unconstitutional and courts must exercise discretion in sentencing. The petitioner, having served 10 years, demonstrated significant rehabilitation and remorse, and was recommended for reintegration by the State....
Source-derived case information.
- Citation
- [2020] KEHC 7582 (KLR)
- Parties
- Applicant: Paul Odhiambo Mbola; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 55 of 2019
- Procedural Posture
- Miscellaneous Criminal Application / Resentencing Application After Conviction and Appeals Exhausted
- Outcome
- Petition for resentencing allowed. Petitioner resentenced to period served.
- Judges
- TW Cherere
- Legal Topics
- Defilement, Sentencing Discretion, Mandatory Sentences, Resentencing, Rehabilitation, Sexual Offences
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Paul Odhiambo Mbola
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Resentencing Application After Conviction and Appeals Exhausted
Legal Issues
- 1 Whether the petitioner is entitled to resentencing following the Supreme Court decision declaring mandatory sentences unconstitutional.
- 2 What sentence is appropriate considering the petitioner's rehabilitation and time served.
Ratio Decidendi
The court found that, following the Supreme Court's decision in Muruatetu, mandatory sentences are unconstitutional and courts must exercise discretion in sentencing. The petitioner, having served 10 years, demonstrated significant rehabilitation and remorse, and was recommended for reintegration by the State. Considering the seriousness of the offence and the psychological impact on the complainant, but also the petitioner's exemplary conduct and readiness for reintegration, the court determined that resentencing to the period already served was just and appropriate.
Court Disposition
Petition for resentencing allowed. Petitioner resentenced to period served.
Orders
- The petitioner is resentenced to the period already served.
- The petitioner is to be released from custody forthwith unless otherwise lawfully held.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KISUMU
(CORAM: CHERERE- J.)
MISC CRIMINAL APPLICATION NO. 55 OF 2019
BETWEEN
PAUL ODHIAMBO MBOLA..............................................................PETITIONER
AND
REPUBLIC..........................................................................................RESPONDENT
JUDGMENT
Introduction
1. PAUL ODHIAMBO MBOLA, (Petitioner) was convicted and sentenced to life imprisonment on 16th November, 2010 in KISUMU CRIMINAL CASE NO. 318 OF 2009, for the offence of defilement contrary to Section 8(1) as read with section 8(2) of the Sexual Offences Act No. 3 of 2006.
2. Petitioner lodged an appeal KISUMUHIGH COURT CRIMINAL APPEAL NO. 175 OF 2010 which by a judgment dated 24th September, 2012 upheld the conviction and sentence.
3. The Petitioner subsequently appealed to the Court of Appeal in KISUMU CRIMINAL APPEAL NO. 16 OF 2014which by a judgment dated 23rd October, 2014 similarly upheld the conviction sentence.
4. The Petitioner has petitioned this court for resentencing. He expressed remorse and stated that he was arrested at the age of 35 years and had served 10 years since conviction within which time he has been trained in theology, paralegal, counselling, making juice and shampoo among others and was the Deputy Head Teacher at Naivasha Inmates Education Centre as a means of rehabilitation. The officer in charge of Naivasha Inmates Education Centre by his letter dated 02nd January, 2010 has vouched for the Petitioner’s good conduct and rehabilitation.
5. Ms. Gathu, Senior Prosecution Counsel for the state appreciated that the Petitioner had prepared himself for integration with the public and recommended that he be resentenced to 20 more years.
Analysis and Determination
6. At the time of the Petitioner’s conviction, mandatory sentences had not been declared unconstitutional.
7. The Supreme Court’s decision in Francis Karioki Muruatetu & Another v Republic & 5 others [2016] eKLR declaring the mandatory death sentence unconstitutional has necessitated resentencing of all persons previously sentenced to the mandatory sentences.
8. I have considered The Sentencing Policy Guidelines, 2016and its application which is intended to promote transparency, consistency and fairness in sentencing (See Michael Kathewa Laichena & another v Republic [2018] eKLR).
9. In Dismas Wafula Kilwake v Republic [2018] eKLR, the Court of Appeal set out the factors to be considered in sentencing under the Act. It observed as follows:
[W]e hold that the provisions of section 8 of the Sexual Offences Act must be interpreted so as not to take away the discretion of the court in sentencing. Those provisions are indicative of the seriousness with which the Legislature and the society take the offence of defilement. In appropriate cases therefore, the court, freely exercising its discretion in sentencing, should be able to impose any of the sentences prescribed, if the circumstances of the case so demand. On the other hand, the court cannot be constrained by section 8 to impose the provided sentences if the circumstances do not demand it. The argument that mandatory sentences are justified because sometimes courts impose unreasonable or lenient sentences which do not deter commission of the particular offences is not convincing, granted the express right of appeal or revision available in the event of arbitrary or unreasonable exercise of discretion in sentencing.
10. Even though Appellant was a first offender, the psychological effect of the offences on the 11-year-old complainant cannot be underestimated.
11. The Appellant has served 10 years. He has expressed remorse and his record of rehabilitation within those 10 years is remarkable. I wholly agree with the state that the Petitioner has fully prepared himself for integration with the public and is armed with skills to enable him lead a productive life outside prison. Consequently, I find that it would be in the interest of justice to resentence him to the period served. It is so ordered.
DELIVERED AND SIGNED IN KISUMU THIS 05thDAY OFMarch 2020
T. W. CHERERE
JUDGE
In the presence of-
Court Assistant - Amondi/Okodoi
Petitioner - Present in person
For the State - Ms. Gathu