[2020] KEHC 4077 (KLR)
The High Court found that the imposition of a minimum mandatory sentence under section 11(1) of the Sexual Offences Act was unconstitutional following the Supreme Court's decision in Muruatetu, which declared mandatory minimum sentences unconstitutional as they remove judicial discretion. The court further held...
Source-derived case information.
- Citation
- [2020] KEHC 4077 (KLR)
- Parties
- Applicant: Samuel Mwanzi Muthui; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Garissa
- Jurisdiction
- Kenya
- Case Number
- Criminal Miscellaneous Application 31 of 2019
- Procedural Posture
- Criminal Miscellaneous Application / Ruling on Sentence Revision
- Outcome
- sentence revised; applicant to be released
- Judges
- CM Kariuki
- Legal Topics
- Sentencing Revision, Minimum Mandatory Sentence, Sexual Offences, Custodial Sentence, Time Spent in Custody
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Samuel Mwanzi Muthui
Applicant
Republic
Respondent
Procedural Posture
Criminal Miscellaneous Application / Ruling on Sentence Revision
Legal Issues
- 1 Whether the minimum mandatory sentence imposed under section 11(1) of the Sexual Offences Act is unconstitutional in light of the Muruatetu decision.
- 2 Whether the period spent in custody prior to sentencing should be considered in determining the appropriate sentence under section 333(2) of the Criminal Procedure Code.
- 3 Whether the applicant, as a first offender, is entitled to a reduced or revised sentence.
Ratio Decidendi
The High Court found that the imposition of a minimum mandatory sentence under section 11(1) of the Sexual Offences Act was unconstitutional following the Supreme Court's decision in Muruatetu, which declared mandatory minimum sentences unconstitutional as they remove judicial discretion. The court further held that, under section 333(2) of the Criminal Procedure Code, the period the applicant spent in custody prior to sentencing must be considered. Given that the applicant was a first offender, had already served approximately 6½ years in custody, and there were no aggravating circumstances, the court determined that the period already served was sufficient punishment. Consequently, the...
Court Disposition
sentence revised; applicant to be released
Orders
- The sentence of the trial court of 10 years is set aside and substituted with the period already served.
- The applicant shall be released forthwith unless otherwise lawfully held.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT GARISSA
CRIMINAL MISC. APPL. NO. 31 OF 2019
SAMUEL MWANZI MUTHUI.........................APPLICANT
VERSUS
REPUBLIC.................................................RESPONDENT
RULING
1. The Applicant was convicted and sentenced to 10 years imprisonment for offence of indecent act with a child contrary to section 11(1) of the Sexual Offences Act No. 3 of 2006.
2. He did not appeal but has moved court under section 333(2) of the Criminal Procedure Code Cap 75 Laws of Kenya which states that, “subject to the provisions of section 38 of the Penal Code every sentence shall be deemed to commence from and to include the whole of the date on which it was pronounced except where otherwise provided in this Code provided that where the person sentenced under sub-section (1) has prior to such sentence, been held in custody, the sentence shall take account of period spent in custody.” This was also affirmed in Mitobi vs Republic [2018] eKLR.
3. In mitigation the Applicant stated that he had family and children and also said he took care of his sister.
4. He had no previous conviction records.
5. The trial court said it took into consideration of period Applicant was in custody. However, as the provisions of section 11(1) of the Sexual Offences Act provided minimum mandatory sentence, he accorded Applicant 10 years’ imprisonment.
6. The Muruatetu case Supreme Court Petition No. 15 of 2015 of 17/12/2017 ruled that so is the subsequent superior court decisions”mandatory aspect of a sentence is unconstitutional. Thus, though the Applicant never appealed against the sentence, this court can interfere in the order on sentence by invoking revisionary powers and render a sentence commensurate to the circumstances of the matter especially where sentence is unconstitutional on aspect of minimum mandatory sentence.
7. The court notes that the complainant as per the charge sheet is alleged to have been touched buttocks though in her testimony, she talked of being caressed on back and shoulders. The clinical officer PW9 didn’t find any injuries on the girl genitals and the age assessment is said to have been 11 – 13 by the time of the incident.
8. The Applicant was a first offender.
9. The court thus finds that the Applicant having been in custody since 17/1/2014 now 6½ years or so, he has suffered enough and learned a lesson. Thus, the court finds that the period served is adequate.
10. Thus, the court makes the following orders: -
(1) The sentence of trial court 10 years is set aside and substituted with the period already served.
(2) Thus the Applicant shall be released forthwith unless otherwise lawfully held.
DATED, DELIVERED AND SIGNED AT GARISSA THIS 28TH DAY OF JULY, 2020.
........................
C. KARIUKI
JUDGE