[2022] KEHC 18043 (KLR)

Wafula v Republic (Criminal Appeal E099 of 2021) [2022] KEHC 18043 (KLR) (6 October 2022) (Judgment)

Neutral citation: [2022] KEHC 18043 (KLR)

Republic of Kenya

In the High Court at Kitale

Criminal Appeal E099 of 2021

AC Mrima, J

October 6, 2022

Between

Moses Wafula

Appellant

and

Republic

Respondent

(Being an appeal on sentence arising from the conviction and sentence by Hon. S. N. Makila, Principal Magistrate in Kitale Chief Magistrate’s Court Sexual Offence Case No. E033 of 2021 delivered on 25/11/2021)

Judgment

1. The Appellant herein, Moses Wafula, was charged with the offence of Defilement contrary to Section 8(1)(3) of the Sexual Offences Act, No 3 of 2006. He also faced an alternative charge of committing an indecent act with a Child contrary to Section 11(1) of the Sexual Offences Act, No 3 of 2006.

2. He denied the offences and a trial was held. A finding of guilty of the offence of defilement was returned and he was convicted. The Court sentenced the Appellant to a minimum term of twenty years in prison.

3. The Appellant initially appealed against both the conviction and sentence. However, at the hearing of the appeal, the Appellant abandoned the appeal on conviction and only pursued the appeal on sentence.

4. In his submissions, the Appellant claimed that the sentence was very harsh. He prayed for a lesser sentence.

5. This Court is the first appellate Court.

6. The Court in Wanjema v Republic(1971) EA 493 laid down the general principles upon which the first appellate Court may act on when dealing with an appeal on sentence. An appellate Court can only interfere with the sentence imposed by the trial Court if it is satisfied that in arriving at the sentence the trial Court did not consider a relevant fact or that it considered an irrelevant factor or that in all the circumstances of the case, the sentence is harsh and excessive. However, the appellate Court must not lose sight of the fact that in sentencing, the trial Court exercised discretion and if the discretion is exercised judicially and not capriciously, the appellate Court should be slow to interfere with that discretion.

7. I have carefully considered the record. Upon mitigation, the trial Court stated as follows in sentencing the Appellant: -The offence has a minimum sentence under Section 8(3) of the SO Act. The accused has not given reason for any lesser sentence. I will sentence him to the minimum 20 years imprisonment.

8. The Court was, therefore, guided by the provisions of Section 8(3) of the Sexual Offences Act in handing down the minimum sentence of twenty years’ imprisonment.

9. Section 8(3) of the Sexual Offences Act states as follows: -A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.

10. The above provision apparently provides a minimum sentence of not less than twenty years imprisonment on conviction.

11. The aspect as to whether sentencing Courts are bound by statutory provisions on minimum sentences is by now well settled. The constitutionality of minimum sentences has been considered by Courts and, just like mandatory sentences, do not pass the constitutional muster under Article 50(1) of the Constitution for they infringe on the right to fair trial by interfering with the discretion of a sentencing Court. I will consider some few decisions to that end.

12. The Supreme Court in Petition No 15 of 2015 Francis Karioko Muruatetu & another v Republic [2017] eKLR addressed the issue of mandatory sentences in Section 204 of the Penal Code, Cap. 63 of the Laws of Kenya in the following manner: -(47)Indeed the right to fair trial is not just a fundamental right. It is one of the inalienable rights enshrined in Article 10 of the Universal Declaration of Human Rights, and in the same vein Article 25(c) of the Constitution elevates it to a non-derogable right which cannot be limited or taken away from a litigant. The right to fair trial is one of the cornerstones of a just and democratic society, without which the Rule of Law and public faith in the justice system would inevitably collapse.(48)Section 204 of the Penal Code deprives the Court of the use of judicial discretion in a matter of life and death. Such law can only be regarded as harsh, unjust and unfair. The mandatory nature deprives the Courts of their legitimate jurisdiction to exercise discretion not to impose the death sentence in appropriate cases. Where a court listens to mitigating circumstances but has, nonetheless, to impose a set sentence, the sentence imposed fails to conform to the tenets of fair trial that accrue to accused persons under Articles 25 of the Constitution; an absolute right.(49)With regard to murder convicts, mitigation is an important facet of fair trial. In Woodson as cited above, the Supreme Court in striking down the mandatory death penalty for murder decried the failure to individualize an appropriate sentence to the relevant aspects of the character and record of each defendant, and consider appropriate mitigating factors. The Court was of the view that a mandatory sentence treated the offenders as a faceless, undifferentiated mass to be subjected to the blind infliction of the penalty of death thereby dehumanizing them.(50)We consider Reyes and Woodson persuasive on the necessity of mitigation before imposing a death sentence for murder. We will add another perspective. Article 28 of the Constitution provides that every person has inherent dignity and the right to have that dignity protected. It is for this Court to ensure that all persons enjoy the rights to dignity. Failing to allow a Judge discretion to take into consideration the convicts’ mitigating circumstances, the diverse character of the convicts, and the circumstances of the crime, but instead subjecting them to the same (mandatory) sentence thereby treating them as an undifferentiated mass, violates their right to dignity.(51)The dignity of the person is ignored if the death sentence, which is final and irrevocable is imposed without the individual having any chance to mitigate. We say so because we cannot shut our eyes to the distinct possibility of the differing culpability of different murderers. Such differential culpability can be addressed in Kenya by allowing judicial discretion when considering whether or not to impose a death sentence. To our minds a formal equal penalty for unequally wicked crimes and criminals is not in keeping with the tenets of fair trial.(52)We are in agreement and affirm the Court of Appeal decision in Mutiso that whilst the Constitution recognizes the death penalty as being lawful, it does not provide that when a conviction for murder is recorded, only the death sentence shall be imposed. We also agree with the High Court's statement in Joseph Kaberia Kahinga that mitigation does have a place in the trial process with regard to convicted persons pursuant to Section 204 of the Penal Code. It is during mitigation, after conviction and before sentencing, that the offender's version of events may be heavy with pathos necessitating the Court to consider an aspect that may have been unclear during the trial process calling for pity more than censure or on the converse, impose the death sentence, if mitigation reveals an untold degree of brutality and callousness.(53)If a Judge does not have discretion to take into account mitigating circumstances it is possible to overlook some personal history and the circumstances of the offender which may make the sentence wholly disproportionate to the accused's criminal culpability. Further, imposing the death penalty on all individuals convicted of murder, despite the fact that the crime of murder can be committed with varying degrees of gravity and culpability fails to reflect the exceptional nature of the death penalty as a form of punishment. Consequently, failure to individualise the circumstances of an offence or offender may result in the undesirable effect of 'overpunishing' the convict.

13. In S vs Mofokeng1999(1) SACR 502 (W) at 506 (d), Stegmann, J had the following to say: -"….. For the Legislature to have imposed minimum sentences severely curtailing the discretion of the Courts, offends against the fundamental constitutional principles of separation of powers of the Legislature and the Judiciary. It tends to undermine the independence of the courts and to make them mere cat’s paws for the implementation by the legislature of its own inflexible penal policy that is capable of operating with serious injustice in particular cases."

14. The Court in S vs Jansen 1999 (2) SACR 368 (C) at 373 (g)-(h), Davis, J stated that: -"… mandatory minimum sentences disregard all individual characteristics and each case is treated in a factual vacuum, leaving no room for an examination of the prospect of rehabilitation and of the incarceration method to be adopted. Such a system can result in a gross disregard of the right to dignity of the accused."

15. The High Court (Ogola, J) in Yusuf Shiunzi v Director of Public Prosecution [2020] eKLR discussed the matter in the manner hereunder: -21. It is not disputed that the opinion of the Supreme Court with respect to mandatory sentences apply with equal force to minimum sentences. This is also supported by the Kenya Judiciary Sentencing Policy Guidelines where it is appreciated that:“Whereas mandatory and minimum sentences reduce sentencing disparities, they however fetter the discretion of courts, sometimes resulting in grave injustice particularly for juvenile offenders.”

22. The approach to be adopted in determining an appropriate sentence where a minimum sentence is prescribed was set out in S vs Malgas 2001 (2) SA 1222 SCA 1235 paragraph 25 as follows:"What stands out quite clearly is that the courts are a good deal freer to depart from the prescribed sentences than has been supposed in some of the previously decided cases and that it is they who are to judge whether or not the circumstances of any particular case are such as to justify a departure. However, in doing so, they are to respect, and not merely pay lip service to, the Legislature's view that the prescribed periods of imprisonment are to be taken to be ordinarily appropriate when crimes of the specified kind are committed.”

16. Deriving from the foregoing, the Court ought not to have been bound by the minimum sentence in Section 8(3) of the Sexual Offences Act. I, however, note that the Court indicated that the Appellant had not given any reason for a lesser sentence. I think the Court was aware of the constitutional position on the minimum sentences, but again it retreated and stated that it will, and indeed, granted the minimum sentence.

17. Whereas a sentencing Court has the jurisdiction to grant any lawful sentence including any provided as a minimum sentence, the Court has to arrive at such a sentence upon exercising its discretion. In other words, the provisions on minimum sentences are no longer binding to sentencing Courts.

18. Given the current unconstitutional status of statutory provisions on minimum sentences, it is imperative that such laws be accordingly amended. To that end, this judgment shall be served upon the Hon. Attorney General and the Kenya Law Reform Commission.

19. The upshot is, therefore, that the sentence imposed, with tremendous respect to the sentencing Court, is unconstitutional.

20. This Court has further noted that despite the gravity of the offence, the sentencing Court did not call for any Pre-Sentence Report.

21. Sentencing is a crucial part in the criminal process and the administration of justice. It is also discretionary. In exercising the discretion, a sentencing Court is called upon to be guided by a raft of considerations. Such are discussed at length in the Sentencing Guidelines published on April 29, 2016vide Gazette Notice No 2970 by the Hon The Chief Justice of the Republic of Kenya who is also the Chairperson of the National Council on the Administration of Justice (NCAJ) and in case law including the Supreme Court in Petition No 15 of 2015 Francis Karioko Muruatetu & another v Republic[2017] eKLR.

22. In this matter, the Court only considered the aspect of the minimum nature of the sentence provided under Section 8(3) of the Sexual Offences Act. Obviously, the Court did not have the advantage of the Appellant’s background as well as the victim’s position. All these issues, among many others, would have easily been availed to the Court through a Pre-Sentence Report. No such report was called for.

23. It is the position that there is no law that a Court must always call for a Pre-Sentence Report before passing sentence. However, such a report becomes crucial especially when a Court is considering a sentence in serious offences. The reports accord the Court a latitude of relevant information. Such a report will also enable the Court to pass a sentence in consonance with the calling to protect of human rights and fundamental freedoms in respect to both the accused and the victim. The report easily aids a Court to attain that balance. For avoidance of doubt, such a resultant sentence would either be lesser that the one rendered in this matter, similar or even a higher one.

24. This Court would have, either way, set-aside the sentence even if it was not caught up in the web of the unconstitutionality for want of the Court to interrogate and consider all the relevant factors guiding sentencing.

25. Having said so, I must, however, clarify that this Court is not giving a blanket position that sentencing Courts must always call for Pre-Sentence Reports. A Court ought to be guided by several factors in deciding on whether to call for a Pre-Sentence Report or even a Victim Assessment Report. Some of those factors include the nature of the offence, the possible sentence, the status of the victim and/or the accused, among others.

26. This Court, has by now, said enough to dispose of the appeal. Deriving from the above, the following final orders of this Court do hereby issue:a.The sentence of twenty (20) years’ imprisonment rendered on November 25, 2021 is hereby set-aside.b.The Appellant shall be re-sentenced by the trial Court.c.A Pre-Sentence Report be availed before the trial Court.d.The Hon. Deputy Registrar of this Court to transmit the trial Court file and a copy of this judgment to the trial Court forthwith. The Registrar shall also transmit certified copies of this judgment to the Hon. Attorney General and to the Kenya Law Reform Commission.e.This file is hereby marked as Closed.

Orders accordingly.

DELIVERED, DATED AND SIGNED AT KITALE THIS 6TH DAY OF OCTOBER, 2022. A. C. MRIMAJUDGEJudgment delivered in open Court and in the presence of: -Moses Wafula,the Appellant in person.Miss Kiptoo, Learned Prosecution Counsel instructed by the Office of the Director of Public Prosecutions for theRespondent.Kirong/Chemutai– Court Assistants.