[2023] KEHC 24247 (KLR)

PMK v Republic (Criminal Revision E156 of 2022) [2023] KEHC 24247 (KLR) (16 October 2023) (Ruling)

Neutral citation: [2023] KEHC 24247 (KLR)

Republic of Kenya

In the High Court at Makueni

Criminal Revision E156 of 2022

GMA Dulu, J

October 16, 2023

Between

PMK

Applicant

and

Republic

Respondent

(Makueni High Court Criminal Appeal No 24 of 2019 and appeal was dismissed on 17th March 2021. Criminal Appeal 24 of 2019 )

Ruling

1. Before me is a Chamber Summons filed on 17th June 2022, by the applicant PMK, seeking the following orders:-1. That the honourable court implement (what was) laid out at Philip Maingi & 5 others v Republic – Petition No 17 of 2021 at Machakos High Court.2. That the court take into account any clemency factors beforehand and hands the petitioner appropriate relief.3. That this court applies the principles put down in Supreme Court concerning first offender.4. That constitutionally a mandatory minimum sentence raises a question of law under SOA (Sexual Offences Act) as mandatory nature deprives court of legitimate jurisdiction to exercise its discretion not conforming to tenets of trial under Articles 25(c) – Christopher Achieng v Republic (2018) Criminal Appeal No 93 of 2014, COA Appeal No 312 of 2018 Evans Wanjala Wanyonyi at Eldoret.

2. The Chamber Summons was filed with a supporting affidavit sworn by the applicant in which it was deponed that the applicant’s criminal appeal – Makueni High Court Criminal Appeal No 24 of 2019 was dismissed, and that there were new developments arising from the decision in the case of Philip Maingi & 5 others v Republic (2022) – Machakos High Court, and that as such the applicant’s mitigation factors for a first offender should be considered.

3. The application was canvassed through written submissions. In this regard, I have perused and considered the submissions filed by the applicant, as well as the submissions filed by the Director of Public Prosecutions.

4. Though the applicant argues strongly that this is a matter where this court should consider reviewing the sentence downwards for him as a first offender, the Director of Public Prosecutions maintains that the sentence of imprisonment herein was the appropriate sentence in the circumstances of the matter, and in any case, the applicant has not exhausted the avenue of appeal to the Court of Appeal.

5. On my part, I note that the appellant was indeed convicted of incest by the trial court in Makueni SRM Criminal Case No (SO) 33 of 2018 and sentenced to 12 years imprisonment. He appealed through Makueni High Court Criminal Appeal No 24 of 2019 and his appeal was dismissed on 17th March 2021. He did not appeal to the Court of Appeal.

6. Indeed, there has been emerging jurisprudence in sentencing, and the case of Philip Maingi & 5 others v Republic (Machakos High Court) is one of the said cases in this emerging jurisprudence, specifically on minimum sentences. In the present case, the minimum statutory sentence was 10 years imprisonment and the applicant was sentenced to 12 years imprisonment which was slightly higher than the minimum sentence.

7. In considering the appropriate sentence to pronounce, a court considers the special circumstances of each case and the attendant specific mitigating factors.

8. I note that during sentencing herein, the trial Magistrate asked for a pre-sentence report as well as a victim impact report. The trial court then states as follows during sentencing –“I have considered the accused person’s pre-sentence report. It points a picture of a deviant man. I have also considered the victim impact statement report. The victim is psychologically affected. This case is indeed unfortunate, the accused viciously attacked his elderly grandmother, proceeded to rape her and left her for dead. The court finds those actions degrading and the lowest levels a man can degenerate to. I have taken note of the foregoing circumstance and the two reports herein and find it suitable that the accused person suffers punishment worth his actions. I therefore sentence him to 12 years imprisonment. 14 days right of appeal explained.”

9. In my view, though the offence herein has a minimum sentence under the Sexual Offences Act, the sentence imposed herein was determined after taking into account all the relevant factors, including written reports. I find that the holding in the case of Philip Maingi (supra) does not help the appellant as all necessary factors were considered by the Magistrate in determining the appropriate sentence.

10. I thus find no merits in the application for review of sentence herein, and dismiss the same.

DATED, SIGNED AND DELIVERED THIS 16TH DAY OF OCTOBER 2023 VIRTUALLY AT VOI.GEORGE DULUJUDGEIn the presence of:Alfred – Court AssistantApplicantMr. Kazungu for State