Ayua v Republic [2022] KEHC 13558 (KLR)

Ayua v Republic (Miscellaneous Criminal Application E115 of 2022) [2022] KEHC 13558 (KLR) (5 October 2022) (Ruling)

Neutral citation: [2022] KEHC 13558 (KLR)

Republic of Kenya

In the High Court at Siaya

Miscellaneous Criminal Application E115 of 2022

RE Aburili, J

October 5, 2022

Between

Kennedy Okinda Ayua

Applicant

and

Republic

Respondent

(Being an Application against Judgment, conviction and sentence in the Senior Principal Magistrate’s Court at Siaya in Sexual Offence Case No.108/2013 by Hon. M.S. Kimani, Resident Magistrate on 25. 11. 2014 AND in Siaya HCRA No. 11 of 2015 by Hon. Justice J.A. Makau, J)

Ruling

1. On November 25, 2014, the applicant herein was sentenced to serve life imprisonment following the conviction for the offence of defilement contrary to section 8 (1) (2) of the Sexual Offences Act. This was vide Siaya SPM Court Sexual Offence No. 108/2013.

2. He appealed to this court vide HCRA 11/2015 and vide judgment delivered on December 10, 2015, J. Makau, J dismissed his appeal, both against conviction and sentence. He now seeks for resentencing but he has not demonstrated that the trial court erred in sentencing him to life imprisonment. However, I note that he was a first offender and he mitigated praying for leniency. He however claims that he had also been in prison custody from 2008. He cited Petition E017 of 2021 Phillip Mueke Mangi and 5 othersvDPP where Odunga J (as he then was) at Machakos High Court rendered that mandatory minimum sentences are unconstitutional in so far as they deprive the trial court inherent discretion to sentence a convicted person having regard to the circumstances of each case and further deny a convict an opportunity to mitigate

3. In this case, the trial court, and indeed, the High Court on appeal, had no discretion on sentencing in mandatory minimum sentences stipulated by law - the Sexual Offences Act. It was not until the Supreme Court in Francis Muruatetu andanotherv Republic [2017] eKLR gave guidelines in mandatory death sentences in Murder cases, that the lower courts and superior courts started exercising discretion in similar cases.

4. The Supreme Court on July 6, 2021in the said Francis Muruatetu II case gave an advisory clarifying its earlier decision in Muruatetu 1 and stated that each case has to be considered on its own circumstances. Odunga J has since pronounced himself on the issue in cases under the Sexual Offences Act. That decision is persuasive but reasonable.

5. It follows that whereas life imprisonment as mandatory sentence for defilement under section 8(2) of the Sexual Offences Act may not be unconstitutional as the trial court may impose such sentence having regard to the circumstances of each case, the courts are not necessarily mandated to impose minimum mandatory sentences.

6. Considering all the above, and the mitigations by the applicant, although no remorse is shown, I set aside life imprisonment and I hereby resentence the applicant Kennedy Okinda Ayua to serve forty (40) years imprisonment to be calculated from the date of his arrest and for the period that he was in custody during the trial, having failed to raise the bond terms imposed by the trial court.

7. I so order.

8. File closed.

DATED, SIGNED AND DELIVERED AT SIAYA THIS 5TH DAY OF OCTOBER, 2022. R.E. ABURILIJUDGE