[2022] KEHC 17276 (KLR)

RNO v Republic (Revision Case E040 of 2022) [2022] KEHC 17276 (KLR) (8 December 2022) (Ruling)

Neutral citation: [2022] KEHC 17276 (KLR)

Republic of Kenya

In the High Court at Nyamira

Revision Case E040 of 2022

WA Okwany, J

December 8, 2022

Between

RNO

Applicant

and

Republic

Respondent

(Being a Revision against the Sentence and Conviction of the Lower Court in the Original Nyamira Chief Magistrate’s Court Sexual Offence Case No. 91 of 2019)

Ruling

1. The applicant herein, RNO, a convicted prisoner, filed a notice of motion on September 21, 2022 seeking orders for a declaration that his rights under article 50 (2) (a) 22 (40), 165 (3) (b) and 163 (1) of the Constitution were breached hence the need for an order for sentence re-hearing and re-sentencing in the interest of justice.

2. The application is supported by his undated affidavit wherein he states that he was charged, tried, convicted and sentenced to serve twenty (20) years imprisonment by Nyamira CM’s court for the offence of attempted incest contrary to section 22 (1) of the Penal Code in a judgment that was delivered on January 14, 2021 and sentence read on March 18, 2021. He contends that article 165 (3) of the Constitution empowers the court to entertain this kind of application.

3. I have perused the lower court file (Nyamira CM Sexual Offence Case No 91 of 2019) which was attached to the instant application and I note that indeed, the applicant was on March 18, 2021 sentenced to serve twenty (20) years imprisonment for the offence of attempted incest.

4. It is trite that, upon conviction and sentence, an accused person has a right of appeal under article 50 (2) (q) of the Constitution which stipulates that: -(2)Every accused person has the right to a fair trial, which includes the right: -(q)if convicted, to appeal to, or apply for review by a higher court as prescribed by law.”

5. Section 347 (1) (a) of the Criminal Procedure Code also provides for the right to appeal a conviction as follows: -“347 (1) save as in this part provided –a.A person convicted on a trial held by a subordinate court of the first or second class may appeal to the High Court.”

6. Section 364 (5) of the Criminal Procedure Code, on the other hand, provides that: -“364 (5) When an appeal lies from a finding, sentence or order, and no appeal is brought, no proceeding by way of revision shall be entertained at the insistence of the party who could have appealed.”

7. In the present case, I note that the applicant was, upon his conviction and sentence, informed of his right of appeal.

8. At the hearing of this application, Mr Majale, learned counsel for the state, submitted that the applicant appealed to the High Court, upon his conviction and that the said court upheld both the conviction and the sentence. I however note that the state counsel did not furnish this court with proof of the alleged appeal or its outcome. I therefore find that the issue of whether or not the applicant herein appealed against the conviction and sentence is neither here nor there.

9. Be that as it may and based on the available material placed before this court, it would appear that the sentence meted out on the applicant is way above the minimum mandatory sentence for the offence of attempted incest as provided for under section 20 (1) (2) of the Sexual Offences Act which stipulates that:1)Any male person who commits an indecent act or an act which causes penetration with a female person who is to his knowledge his daughter, granddaughter, sister, mother, niece, aunt or grandmother is guilty of an offence termed incest and is liable to imprisonment for a term of not less than ten years:Provided that, if it is alleged in the information or charge and proved that the female person is under the age of eighteen years, the accused person shall be liable to imprisonment for life and it shall be Incest by male persons. 14 No 3 of 2006 Sexual Offences Act Rev 2009] immaterial that the act which causes penetration or the indecent act was obtained with the consent of the female person.(2)If any male person attempts to commit the offence specified in subsection (1), he is guilty of an offence of attempted incest and is liable upon conviction to a term of imprisonment of not less than ten years

10. What then is the courts’ position on the minimum mandatory sentence?

11. In Machakos HC petition No E17 of 2021 Philip Mueke Maingi & others v Director of Public Prosecutions [2022] KEHC 13118 (KLR), the court held that : -“To 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, such sentences fall foul of article 28 of the Constitution. However, the courts are at liberty to impose sentences prescribed thereunder so long as the same are not deemed to be the mandatory minimum prescribed sentences’. Taking a from the decision in Francis Karioko Muruatetu & Another v Republic[2017] eKLR (Muruatetu 1) those who were convicted of sexual offences and whose sentences were passed on the basis that the trial courts had no discretion but to impose the said mandatory minimum sentence are at liberty to petition the High Court for orders of resentencing in appropriate cases”

12. The principle emerging from the above decision is that the court has latitude to sentence a convict for the offence of attempted incest for a prison term of below 10 years in cases where provisions of section 20 (1) (2) of Sexual Offences Act obtain.

13. Taking into account the circumstances of the case and considering that that the applicant has served almost 2 years of his sentence, has been in custody since his arrest in November 2019, and was aged 28 years at the time of his trial I make the orders;The sentence imposed on the applicant is hereby reduced to 5 years imprisonment which sentence shall begin to run from the date of his first court appearance on November 7, 2019. It is so ordered.

DATED, SIGNED AND DELIVERED AT NYAMIRA THIS 8TH DAY OF DECEMBER 2022. W. A. OKWANYJUDGEIn the presence of:Richard Nyachieo Okongo present – virtuallyMajale for respondentCourt Assistant – Anita