[2022] KEHC 13754 (KLR)

SOO v Republic (Criminal Petition E011 of 2022) [2022] KEHC 13754 (KLR) (12 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13754 (KLR)

Republic of Kenya

In the High Court at Siaya

Criminal Petition E011 of 2022

RE Aburili, J

October 12, 2022

Between

SOO

Petitioner

and

Republic

Respondent

(Being a Petition arising from Judgment, conviction and sentence in the Senior Resident Magistrate’s court at Ukwala in Sexual Offence Case No. 448 of 2016 delivered on 11. 11. 2016 by Hon. G. Adhiambo, Senior Resident Magistrate and in Siaya HC Criminal Appeal No. 157/2016 by Hon. D.S. Majanja J on 20. 4.2018 Criminal Appeal 157 of 2016 )

Judgment

1. The petitioner herein is SOO. He was convicted and sentenced to serve 20 years imprisonment vide Ukwala SRM SO No 448/2016. He appealed to this court vide HCRA 157/2016 which appeal was heard and dismissed, both on conviction and sentence. The offence committed was defilement under section 8(1) as read with section 8(3) of the Sexual Offences Act.

2. He has now petitioned this court for resentencing on account that he was handed minimum mandatory sentence which has since been declared unconstitutional, vide Machakos Constitutional petition No. E017/2022.

3. I have considered the petition and the supporting grounds. It is true that section 8(3) of the Sexual Offence Act provides for minimum mandatory prison term of 20 years upon conviction of the sexual offender. It is for that reason that the Magistrate in the trial court and High Court on Appeal (J. Makau J) held that on sentence, their hands were chained to the statute. I agree.

4. However, since the Supreme Court’s decision in Francis Muruatetu &another vR[2017]eKLR, courts have interpreted that decision to imply that all mandatory sentences as legislated are unconstitutional to the extent that they deprive the trial courts of the inherent discretion to impose appropriate sentence and secondly, that they deny the accused convict the right to mitigate. In the Machakos Constitutional petition E017 of 2022, Justice G. Odunga added that legislating mandatory sentences interferes with the doctrine of separation of powers between the legislature and the judiciary with the latter’s inherent jurisdiction of discretion in sentencing or meting out appropriate sentences to offenders, having regarding to the circumstances of each case, being curtailed.

5. The latter position is the subsisting interpretation of that law on minimum mandatory sentences though not binding on this court, and unless overturned or overruled by the superior courts.

6. Having said that, I have considered the applicant’s petition and his mitigation that he is remorseful and reformed. That he has trained in biblical studies.

7. I have also perused the lower court proceedings and judgment.

8. The child was aged 15 years old as at the time of being defiled in 2016.

9. The accused now convict petitioner claims that he was aged 18 years old. I also observe that he initially pleaded guilty to the charge on July 11, 2016 but when the facts were read out to court, the trial magistrate observed that the facts did not disclose the offence of defilement as there was no indication of penetration hence the petitioner herein was not allowed to plead to the facts.

10. I also observe that the petitioner was arrested on July 9, 2016 as per the charge sheet and he was released on bond on July 13, 2016.

11. The victim was in class 7.

12. During the hearing, I observe that both the victim and her guardian, PW2, requested the court to forgive both the victim and the accused so that he could go back to school. From the defence proffered, the petitioner was a student and in form three.

13. The petitioner has been in prison since November 11, 2016 which is now almost six years. He was 26 years old (as per birth certificate no xxxx) produced in evidence, whereas the victim is now 21 years old.

14. The mandatory sentence imposed on him upon conviction was 20 years which the appellate court upheld.

15. The petitioner is aware that he committed the offence and from his mitigation, he asked to be forgiven because he did not know that the girl was very young. He asked for mercy so that he could continue with his education.

16. Those mitigations are noted and the circumstances under which the offence was committed are also considered.

17. The victim who was 15 years old readily admitted that she had been having sex with the petitioner two years earlier in 2014 which was very unfortunate as she seemed naïve and oblivious of the offence and the consequences thereof.

18. The same situation was with the petitioner who believed that he had found a girlfriend and felt warmly welcome into the victim’s house during the nights for sex. Sex with children is prohibited by law.

19. Regrettably, I must say, that sex education and the Sexual Offences Act has not been fully disseminated in schools and widely so to members of the public to appreciate the gravity of the offence. As a result, many children engage in sex with other children or borderline boy children and in the end, the boy child or man suffers the loss of liberty, as the girl child suffers either physical or psychological trauma.

20. That said, I find this case is suitable for reconsideration of the minimum mandatory sentence of 20 years imprisonment imposed by the trial court and upheld by the High Court on appeal.

21. I allow the petition. I set aside the mandatory 20 years imprisonment and substitute it with ten (10) years imprisonment to be calculated, taking into account the period that the petitioner was in custody prior to him being released on bond, as stipulated in section 333(2) of the Criminal Procedure Code.

22. I so order.

23. File closed.

DATED, SIGNED AND DELIVERED AT SIAYA THIS 12TH DAY OF OCTOBER, 2022R.E. ABURILIJUDGE