AH v Director of Public Prosecution [2021] KEHC 9528 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

PETITION NO. 75 OF 2019

AH...........................................................................PETITIONER

VERSUS

DIRECTOR OF PUBLIC PROSECUTION.....RESPONDENT

JUDGMENT ON RESENTENCING

1.  The Petitioner AH, was tried and convicted of the offence of defilement contrary to Section 8 (3) as read with Section 8 (2) of the Sexual Offences Act, and sentenced to the mandatory minimum sentence of 20 years by Kwale Resident Magistrate.  The Petitioner has lost appeals to the High Court and to the Court of Appeal, and is now in this court for resentencing pursuant to the Supreme Court decision in Francis Karioko Muruatetu & Another v Republic [2017] eKLR.That reasoning was adopted in Dismas Wafula Kilwake v R [2018] eKLR, where the Court of Appeal sitting in Kisumu had the following to say about the mandatory minimum sentences prescribed in the Sexual Offences Act:

“In principle, we are persuaded that there is no rational reason why the reasoning of the Supreme Court [in Francis Karioko Muruatetu & Another v. Republic, SC Pet. No. 16 of 2015], which holds that the mandatory death sentence is unconstitutional for depriving the courts discretion to impose an appropriate sentence depending on the circumstances of each case, should not apply to the provisions of the Sexual Offences Act, which do exactly the same thing.

Being so persuaded, we hold that the provisions of section 8 of the sexual Offences Act must be interpreted so as not to take away the discretion of the court in sentencing. Those provisions are indicative of the seriousness with which the Legislature and the society take the offence of defilement. In appropriate cases therefore, the court, freely exercising its discretion in sentencing, should be able to impose any of the sentences prescribed, if the circumstances of the case so demand. On the other hand, the court cannot be constrained by section 8 to impose the provided sentences if the circumstances do not demand it. The argument that mandatory sentences are justified because sometimes courts impose unreasonable or lenient sentences which do not deter commission of the particular offences is not convincing, granted the express right of appeal or revision available in the event of arbitrary or unreasonable exercise of discretion in sentencing.

The Sentencing Policy Guidelines require the court, in sentencing an offender to a non-custodial sentence to take into account both aggravating and mitigating factors. The aggravating factors include use of a weapon to frighten or injure the victim, use of violence, the number of victims involved in the offence, the physical and psychological effect of the offence on the victim, whether the offence was committed by an individual or a gang, and the previous convictions of the offender. Among the mitigating factors are provocation, offer of restitution, the age of the offender, the level of harm or damage inflicted, the role played by the offender in the commission of the offence and whether the offender is remorseful.”

2. The Petitioner avers that the mandatory nature of the sentence denied the trial court the opportunity to consider mitigating circumstances.  Section 8 (3) of the Sexual Offences Act reads thus:

“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.”

3. Ms. Balongo, the learned prosecutor, did not submit on this issue.  The Petitioner on his party only submitted that he had changed his mind and that the only order or remedy he now required from this court is one allowing him the benefit of one year he spent in remand.  The prosecution did not object to this prayer.

4. However, the Petitioner’s change of mind does not deny this Court an opportunity to do justice.  The Petitioner is entitled to benefit out of development in the law.  The Petitioner has now spent 12 years in prison.  He was jailed to serve 20 years under a law whose constitutionality has been rebuked by the apex court in the land.

5. In his mitigation the Petitioner states that he is remorseful of his conduct and regrets the same.  The Petitioner further avers that he is a devoted Muslim and his character has changed; that he is devoted to teaching inmates in prison and is engaged in prison staff counselling.  He is also instrumental in farming activities in prison; he is a useful figure to the prison authority and community.  He is a Tanzanian, and has no relative to look for him or visit him in prison.  Before he entered prison he had contracted HIV and is currently a sick person and in medication.  The Petitioner pleaded with this court to release him.

6.  I have carefully considered the petition.  This court has the jurisdiction to interfere with the mandatory sentence of 20 years imposed on the petition.  In doing that I have had to consider the following mitigating circumstances:

HIV status of the Petitioner

The foreign status of the Petitioner

The reformed status of the Petitioner

The leadership roles the Petitioner plays in prison

The Covid-19 pandemic and the need to decongest our prisons

7.  I am satisfied that the Petitioner has made mitigation which this court should consider, and in light of those mitigation I make the following orders:

(i) That the Petitioner’s sentence is hereby reduced to the time already served in prison.

(ii)  That the Petitioner shall be released forthwith from prison unless he is lawfully withheld.

(iii) That upon his release the Petitioner shall be deported to his country of Tanzania, and for this purpose the prison authorities shall hand over the Petitioner to the Kenya Immigration officials in Mombasa for the purposes of effecting this order.

Right of appeal in 14 days.

Dated, Signed and Delivered at Mombasa this 28th dayof January, 2021.

E. K.  OGOLA

JUDGE

Judgment delivered via MS Teams in the presence of:

Petitioner in person via video link

Ms. Balongo for DPP

Ms. Peris Court Assistant