[2021] KEHC 13609 (KLR)
The court held that Section 333(2) of the Criminal Procedure Code, which provides for crediting time spent in remand custody, does not override the mandatory minimum sentences prescribed by Section 8(3) of the Sexual Offences Act. The court found no conflict or ambiguity between these provisions and determined that...
Source-derived case information.
- Citation
- [2021] KEHC 13609 (KLR)
- Parties
- Petitioner: Said Changawa Jeffa; Respondent: Director of Public Prosecution
- Court
- High Court
- Court Station
- High Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Petition E024 of 2020
- Procedural Posture
- Constitutional Petition / Ruling on Petition for Re Sentencing
- Outcome
- petition dismissed
- Judges
- DB Nyakundi
- Legal Topics
- Resentencing, Right to Fair Trial, Mandatory Minimum Sentences, Remand Custody Credit
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Said Changawa Jeffa
Petitioner
Director of Public Prosecution
Respondent
Procedural Posture
Constitutional Petition / Ruling on Petition for Re Sentencing
Legal Issues
- 1 Whether the petitioner was denied the right to offer mitigation before sentencing.
- 2 Whether the trial court failed to consider the period spent in remand custody under Section 333(2) of the Criminal Procedure Code.
- 3 Whether Section 333(2) of the Criminal Procedure Code applies to mandatory minimum sentences under the Sexual Offences Act.
Ratio Decidendi
The court held that Section 333(2) of the Criminal Procedure Code, which provides for crediting time spent in remand custody, does not override the mandatory minimum sentences prescribed by Section 8(3) of the Sexual Offences Act. The court found no conflict or ambiguity between these provisions and determined that the principle established in Muruatetu II regarding the unconstitutionality of the mandatory death penalty is limited to Section 204 of the Penal Code and does not extend to mandatory minimum sentences for sexual offences. Consequently, the petitioner's arguments regarding mitigation and remand credit did not warrant a review or reduction of his sentence. The petition was found...
Court Disposition
petition dismissed
Orders
- The petition is dismissed for lack of merit.
Full Case Text
Judgment text and source record
39 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MALINDI
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITON NO. E024 OF 2020
(FROM HCCR APP 48 OF 2011 AT MALINDI)
THE CONSTITUTION OF KENYA 2010 (SUPERVISORY JURISDICTION AND
PROTECTION FUNDAMENTAL RIGHTS AND FREEDOMS OF AN INDIVIDUAL
HIGH COURT PRACTICE RULES 2013
AND
IN THE MATTER OF ARTICLE 22 (1) OF THE CONSTITUTION
AND
IN THE MATTER OF ARTICLE 23 (1) OF THE CONSTITUTION
AND
IN THE MATTER OF ARTICLE 19, 20, 21, 22, 23, 24, 25, 27, 28,
48, 50, 258 AND 259 OF THE CONSTITUTION
AND
IN THE MATTER OF SECTION 8 (1) AS READ WITH 8 (3) OF
THE SEXUAL OFFENCES ACT NO. 3 OF 2006
BETWEEN
SAID CHANGAWA JEFFA.....................................................PETITIONER
VERSUS
DIRECTOR OF PUBLIC PROSECUTION......................RESPONDENT
Coram: Hon. Justice R. Nyakundi
The Petitioner in person
Mr. Mwangi for the state
R U L I N G
The petition on re-sentencing in terms of Articles 19, 20, 21, 22, 23, 24, 25, 27, 28, 48, 258 and 259 of the Constitution is based on grounds that the petitioner was never given an opportunity to offer mitigation. Further, that the trial Court failed to take into account Section 333 (2) of the Criminal Procedure which provides for credit sentence on the period spent in remand custody.
Background
The petitioner herein was initially indicted, tried, convicted and sentenced to 20 years imprisonment for the offence of defilement contrary to Section 8 (1) as read with Section 8 (3) of the Sexual Offences Act.
Being aggrieved with conviction and sentence, he preferred an appeal to the High Court and thereafter to the Court of Appeal as the Apex Court. On 15. 3.2018, his appeal was entirely dismissed. His appeal for review of sentence is anchored on the premise of Article 50 (2) (Q) of the Constitution, which expressly states as follows:
“That a convicted person has a right to apply for review of sentence to a higher Court as prescribed by Law. The Law herein is as founded in Article 50 (6) (a) and (b) of the same constitution Provides (a) “If the persons appeal if any has been dismissed by the highest court to which the person is entitled to appeal, or the person did not appeal within the time allowed to appeal and new and compelling evidence has become available.”
Attention is now given to applying the principle on new and compelling evidence that the trial Court in mandatory sentences ought to have taken into account Section 333 (2) of the Criminal Procedure Code on pre-conviction period spent in remand custody. Applying this principle to the case there is no conflict or ambiguity between Section 8 (3) of the Sexual Offences Act and Section 333 (2) of the Criminal Procedure Code.
Therefore a Court Judgment which is in the letter of mandatory minimum sentences cannot be said to have offended Section 333 (2) of the Criminal Procedure Code. Indeed, it would be safer for any Court to be guided with the manifestations under the Sexual Offences Act. Such example of presumption is the fact of Section 333 (20 of the Code not ousting the provisions on mandatory minimum sentences. This view was reinforced in connection with the dicta in Muruatetu II, where the Supreme Court emphasized that in the context of unconstitutionality of mandatory death penalty it only applies to the construction and interpretation of Section 204 of the Penal Code. The latter understanding is in consonant with the principle of legality of sentence under Section 8 (3) of the Sexual Offences Act.
It is therefore prudent to conclude that the petition lacks merit and the same ought to be dismissed.
Orders accordingly.
DATED, SIGNED AND DELIVERED AT MALINDI THIS 30TH DAY OF DECEMBER, 2021
..........................
R. NYAKUNDI
JUDGE