[2024] KEHC 3320 (KLR)

Wafula v Odpp (Criminal Petition 1 of 2020) [2024] KEHC 3320 (KLR) (8 April 2024) (Judgment)

Neutral citation: [2024] KEHC 3320 (KLR)

Republic of Kenya

In the High Court at Kabarnet

Criminal Petition 1 of 2020

RB Ngetich, J

April 8, 2024

Between

Edward Wafula

Petitioner

and

Odpp

Respondent

Judgment

1. The applicant was charged with the offence of defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act. The particulars of the offence are that on the 14th day of February 2015 at 003hrs at (particulars Withheld) village in (particulars Withheld) District within Baringo County did intentionally and unlawfully cause his penis to penetrate vagina of M.M a girl aged 11 years.

2. Count II is the offence of Assault causing Actual Bodily Harm contrary to section 251 of the Penal Code. The particulars of the offence are that on the 14th day of February 2015 at 0030 hrs at (particulars Withheld) village in (particulars Withheld) District within Baringo County unlawfully assaulted S.K. thereby occasioning her actual bodily harm.

3. The petitioner herein approached this court through application dated 18th February, 2020 seeking re-sentencing to conform with the Supreme Court directions in Petition No. 15 of 2015 Francis Karioko Muruatetu & Another versus Republic.

4. The application is founded on the grounds that the Applicant was charged with the offence of defilement contrary to section 8(1)(2) of the Penal Code and that this application is in regard to Article 165 of the constitution of Kenya, 2010 which empowers this Honourable court to handle the application of this nature.

5. When the matter came up for hearing on the 7th November, 2023, the petitioner informed the court that he was sentenced to life imprisonment for the offence defilement and his prayer is for a determinate sentence.

6. The prosecution counsel Ms. Ratemo submitted that in light of the court of appeal decision/ declaration that life imprisonment is unconstitutional, they are not opposed to the application by the petitioner but the court should sentence the petitioner to 30 years imprisonment.

7. A social inquiry report revealed that the petitioner had formal education up to class 4 at St. Veronica primary school where he dropped out of school due to lack of school fees and other basic needs. He started engaging in casual labor moving from one place to another before eventually coming to Kabarnet and worked at Central Bar together with the mother of the complainant and they eventually became neighbors as well.

8. The Report confirmed that the applicant married and had one child but the child died while he was in prison and his wife went back to her parent's home with the family of the inmate suspecting that she has since been re-married. Social inquiry shows that the inmate left home in the year 2009 in search of greener pastures and the family knew he was doing well only for them to hear that he had been arrested in Kabarnet in the year 2015.

9. The applicant was a neighbor to victim’s mother as they were all living in the rental houses of one Mzee Musa and they were both working at Central Bar. In the process he developed a friendship with the victim and he took advantage of this friendship leading to the offence. He admits to committing the offence as charged.

10. The local administration of Kabarnet indicate that the inmate is not well known to them since he had moved to the area in search of work and he was not raised in Kabarnet. Local administration from Weonia sub-location in Sikendu location in Trans Nzoia County said they cannot comment much on the applicant’s behavior as he left the area long time ago. They however say that the applicant’s family are well known to them; that they are elderly and the father is also sickly. They are not opposed to the inmate getting a determinate sentence, and added that if he gets a determinate sentence the family wish that he gets his freedom soon so that he can see his parents.

11. The Probation officer was able to trace one village elder and former landlord in Bondeni Mzee Musa but he was not able to remember the case, the victim or the inmate. The sister of the applicant said they are ready to welcome him back home especially his parents who are now elderly and sickly and that he will settle in ancestral land once released. From the report, efforts to reach the victim proved futile as they relocated.

12. The applicant says he has been in prison for 8 years 10 months and prayed for determinate sentence as it will give him hope to rebuild his life once he is released and that a life sentence is too harsh.

Determination 13. I have considered the grounds in support of the application, response by the state and sentiments by people interviewed. The Applicant herein was sentenced to life imprisonment. I take note of the fact that there has been change of jurisprudence in respect to life sentence following decision in Malindi Court of Appeal Criminal Appeal No. 12 of 2021, Julius Kitsao Manyeso Versus Republic where the court declared life sentence unconstitutional. In view of change in jurisprudence, the applicant has a right to approach this court for review of sentence. I have considered probation officer’s report and I am of the view that the applicant herein should benefit from change of jurisprudence declaring life sentence unconstitutional. The applicant therefore deserves determinate sentence.

14. In view of the above, I take note of the fact that the child who is the victim herein was 11 years old. I also take note of the sentiments by the local administration and the family of the applicant including the applicant herein and hereby set life sentence aside and find it appropriate to impose 20 years imprisonment.

15. Final Orders: - 1. Life sentence set aside.

2. Applicant sentenced to 20 years imprisonment.

3. Period served in remand and in prison after sentence to be considered in sentence under order 2 above.

JUDGMENT DELIVERED, DATED AND SIGNED IN VIRTUALLY AT KABARNET THIS 8TH DAY OF APRIL 2024. …………….……………………RACHEL NGETICHJUDGEIn the presence of:CA Sitienei.Ms. Ratemo for state.Petitioner present in person.