[2021] KEHC 5601 (KLR)
The court found that the sentence imposed on the petitioner was a mandatory minimum sentence under Section 8(4) of the Sexual Offences Act. In light of the Supreme Court's decision in Muruatetu, which held that mandatory sentences that remove judicial discretion are unconstitutional, the court determined it had the...
Source-derived case information.
- Citation
- [2021] KEHC 5601 (KLR)
- Parties
- Applicant: Said Bakari; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Petition 186 of 2019
- Procedural Posture
- Petition / Resentencing Judgment
- Outcome
- sentence_varied
- Judges
- DO Ogembo
- Legal Topics
- Defilement, Mandatory Sentencing, Resentencing, Sexual Offences Act, Mitigation, Constitutional Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Said Bakari
Applicant
Republic
Respondent
Procedural Posture
Petition / Resentencing Judgment
Legal Issues
- 1 Whether the mandatory minimum sentence for defilement under Section 8(4) of the Sexual Offences Act is unconstitutional in light of the Supreme Court decision in Muruatetu.
- 2 Whether the circumstances of the petitioner warrant a reduction of the sentence imposed by the trial court.
Ratio Decidendi
The court found that the sentence imposed on the petitioner was a mandatory minimum sentence under Section 8(4) of the Sexual Offences Act. In light of the Supreme Court's decision in Muruatetu, which held that mandatory sentences that remove judicial discretion are unconstitutional, the court determined it had the authority to review and interfere with the sentence. Considering the petitioner's mitigation, including his age at the time of the offence and evidence of reformation, the court set aside the original 15-year sentence and substituted it with a term of nine years' imprisonment from the date of arrest.
Court Disposition
sentence_varied
Orders
- The sentence of 15 years imposed on the petitioner is set aside.
- The petitioner shall serve a jail sentence of nine (9) years from the date of arrest.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
PETITION NO.186 OF 2019
SAID BAKARI......................................PETITIONER
VERSUS
REPUBLIC........................................RESPONDENT
JUDGMENT ON RESENTENCING
1. The Petitioner herein was arraigned before the Kwale Senior Principal Magistrate’s Court inCriminal Case No. 892 of 2015 on a charge of defilement. The Petitioner entered a plea of ‘guilty’ and the learned Trial Magistrate convicted him and sentences him to serve 15 years in prison.
2. The Petitioner is seeking a re-sentence in the instant Petition pursuant to the Supreme Court’s decision in the case of Francis Karioko Muruatetu & Another v Republic [2017] eKLR, wherein the apex Court decided that a mandatory death sentence is against the Constitution.
3. In his submissions the Petitioner prayed for reduction of sentence on the basis that it was a mandatory sentence. He submitted that he does not have parents and that the victim has since been married. He was 25 when he committed the offence.
4. On her part, Ms. Wanjohi the learned prosecutor submitted that this Court should not interfere with the trial court sentence of 15 years.
5. According to Section 8(4) of the Sexual Offences Act No.3 of 2006: -
“A person who commits an offence 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”.
6. Clearly, the sentence imposed on the Petitioner was mandatory sentence which this Court can interfere with.
7. The Petitioner was 25 years when he committed the offence. He was a pretty young man. He has learnt his lesson and now shuns crime. Having now considered the Petitioner’s mitigation, I hereby set aside the sentence of 15 years imposed on the Petitioner. In place thereof I substitute a jail sentence of nine (9) years from the date of arrest.
Dated, Signed and Delivered at Mombasa this 28th day of June, 2021.
E. K. OGOLA
JUDGE
Ruling delivered via MS Teams in the presence of:
Petitioner in person
Ms. Wanjohi for DPP
Ms. Peris Court Assistant