Mwangemi v Republic [2023] KEHC 19465 (KLR)

Mwangemi v Republic (Miscellaneous Application E050 of 2022) [2023] KEHC 19465 (KLR) (30 June 2023) (Ruling)

Neutral citation: [2023] KEHC 19465 (KLR)

Republic of Kenya

In the High Court at Voi

Miscellaneous Application E050 of 2022

GMA Dulu, J

June 30, 2023

Between

Edward Mwangemi

Applicant

and

Republic

Respondent

Ruling

1. Before me is an application filed by the applicant on December 22, 2022 under Article 22(1), 23(1), 25(c), 27, 28, 50(2)(p)(q), 159(2), 160(1) and 165 of the Constitution.

2. In the application, the applicant asks the following orders:-1. That the court be pleased to review his sentence and grant him a lenient sentence informed by his mitigation and the unique facts and circumstances of his case pursuant to Article 50(2)(p)(q) of the Constitution of Kenya.2. That the court be pleased to grant him probation orders if his circumstances fit.3. Any other order that the court deems fit to give in the interest of justice.

3. The application has grounds on its face that the applicant was sentenced to 20 years imprisonment in Voi Magistrate’s Criminal Case No 859 of 2016 for defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act, that he did not appeal to the High Court, and that it was a mandatory (minimum) sentence that did not take into account his mitigation. He cited the case of Mombasa High Court Petition No 97 of 2021 Edwin Wachira & 9 Others v Republic consolidated with Petition No 88 of 2021, 98 of 2021, and 57 of 2021 in which mandatory minimum sentences were declared unconstitutional.

4. The application was filed with a supporting affidavit sworn by the applicant Edward Mwangemi on September 23, 2022, which amplifies the grounds of the application.

5. The application was canvassed through written submissions. In this regard, I have perused and considered the submissions filed by the applicant as well as the submissions filed by the Director of Public Prosecutions.

6. I note that the Director of Public Prosecutions has relied on the Supreme Court case of Muruatetu & Another v Republic (2017) eKLR in opposing this application. Indeed, the Muruatetu case reasoning does not apply herein, as it applied only to mandatory death sentences for those convicted of murder contrary to Section 203 as read with Section 204 of thePenal Code(Cap.63).

7. I also note that the applicant has stated in the application that he did not appeal to the High Court while the record shows that infact he appealed in Voi High Court Criminal Appeal No 74 of 2017 and his appeal was dismissed in a judgment delivered on February 20, 2019.

8. In my view, in line with the reasoning in the persuasive case of Edwin Wachira & 9 Others v Republic Mombasa high Court Petition No 97 of 2021, as well as the case of Maingi v Republic – Machakos High Court (2022) eKLR, where the High Court declared minimum sentences unconstitutional, this court can consider this application.

9. The applicant has stated that his mitigation and the circumstances of the case were not considered by the trial court.

10. Having perused the record and judgment of the trial court and the High Court on appeal I note that the applicant lured a school girl into an illicit love affair, because he worked for the family.

11. The Magistrate noted in sentencing him that in mitigation, the applicant stated as follows:-“I pray for pardon. I had tried to lie in court in my defence to enable me evade the charges, but was not successful. However, since the court has found me culpable I pray for a lenient sentence to enable me take care of my children.”

12. The Magistrate then stated that the court had taken into account the mitigation of the accused and noted that severe penalties were prescribed under the law and sentenced him to 20 years imprisonment, which was the lowest lawful statutory sentence.

13. The High Court, on its part, on appeal noted that a higher sentence was infact warranted due to the facts and circumstances of the case, but maintained the sentence imposed by the trial court merely because the State did not ask for review (enhancement) of sentence.

14. In my view therefore, my hands are tied by the decisions of the trial court and the High Court herein, as both courts considered the mitigation of the applicant and the circumstances of the case in sentencing. The application herein is thus unmerited, and the only option that could be available to the applicant is to appeal to the Court of Appeal, and not to come to this court for review, as this court cannot sit on appeal on its own merit decision in the sentencing herein.

15. Consequently, and for the above reasons, I dismiss the application.

Dated, signed and delivered this 30th day of June 2023 at Voi in open court.GEORGE DULUJUDGEIn the presence of:-The applicantMr. Sirima for the StateMr. Otolo court assistantPage 3 of 3