Wamalwa v Republic [2023] KEHC 23613 (KLR)

Wamalwa v Republic (Criminal Miscellaneous Application E009 of 2019) [2023] KEHC 23613 (KLR) (17 October 2023) (Ruling)

Neutral citation: [2023] KEHC 23613 (KLR)

Republic of Kenya

In the High Court at Lodwar

Criminal Miscellaneous Application E009 of 2019

RN Nyakundi, J

October 17, 2023

Between

Elias Wamalwa

Applicant

and

Republic

Respondent

Ruling

1. The applicant was charged and convicted with the offence of defilement contrary to section 8(1) as read with Section 8(4) of the Sexual Offences Act No 3 of 2006. The particulars of which were that on diverse dates between December 25, 2012 and April 5, 2013 at [Particulars withheld] village in Turkana Central District within Turkana County, intentionally and unlawfully caused his penis to penetrate the Vagina of MTE a child aged 16 years. The applicant was thereafter tried, convicted and sentenced to fifteen (15) imprisonment.

2. On June 25, 2019, he filed an application for review of the sentence. In supporting the application, he stated that after his appeal was dismissed on October 22, 2014, he decided to reform and rehabilitate himself and in doing so, he engaged himself in carpentry and joinery as part of the getting himself prepared to get back to the community.

3. The Officer-In-Charge at the Kitale Main Prison and Lodwar Main Prison both have written letters dated July 22, 2020 and January 17, 2023 respectively. The said letters confirm that the applicant has been well trained in carpentry/joinery and Plumber pipe fitter, both up to government trade test grade II. That he has also acquired a further vast training in biblical studies and theology to certificate and diploma levels. The officers recommended that a second chance will an opportunity to the applicant to give back to the society with the skills so far acquired.

4. He provided copies of certificates which show that he had been trained in the aforementioned fields. In the light of the said qualifications, the Applicant believes that he was currently well equipped to get back to the society.

5. I am of the considered view that he who breaches the trust bestowed upon him, also imposes upon himself a huge task of rebuilding such trust. Even though the Applicant appears to have reformed whilst in prison, it ought to be remembered that when he committed the offence, he broke the trust and responsibility that was bestowed on him by the community. When the offence is committed against a vulnerable member of the society, such as minors, the offender must appreciate that that calls for much greater effort on his part, to regain the trust of the society.

6. I take note that the applicant has so far served a total of seven years remand period inclusive. It is evident that through the trainings undertaken by the applicant, he did not allow hopelessness and despair to overwhelm him. With the help and guidance of the Prison authorities, the Applicant has earned some skills which could prove useful to him, whenever he may regain his freedom from prison.

7. However, the most significant question I ask myself is whether or not the Applicant has made out a case to warrant the review of the sentence.

8. The Applicant was handed the minimum sentence prescribed by statute. Pursuant to Section 8 (4) of the Sexual Offences Act, a person who commits the offence of defilement with a child between the age of 16 and 18 years, is liable to imprisonment for a term of not less than 15 years.

9. In the case of Francis Karioko Muruatetu & another Vs Republic, Criminal Petition No 15 OF 2015, the Supreme Court held that mitigation was an important facet of fair trial. The learned Judges said;

10. It is for this Court to ensure that all persons enjoy the rights to dignity.

11. Failing to allow a Judge discretion to take into consideration the convict’s 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.”

12. In the 'Muruatetu Case', the Supreme Court outlined the following guidelines as being applicable when the Court was giving consideration to re-sentencing;(a)age of the offender;(b)being a first offender;(c)whether the offender pleaded guilty;(d)character and record of the offender;(e)commission of the offence in response to gender-based violence;(f)remorsefulness of the offender;(g)the possibility of reform and social re-adaption of the offender;(h)any other factor that the Court considers relevant.”

13. In the present case I have considered the aforementioned guidelines and particularly the age of the offender at the time when he committed the offence. He was 25 years old. I put a rider that training in skills should not be substituted for a punishment well deserved. It cannot also be assumed that since an offender has attained life support skills that can mitigate against a slide back to crime, the court should solely consider this as a factor for release.

14. I have considered the objectives of sentencing in their totality and I find it proper to review the sentence downwards. Accordingly, the 15 years imprisonment is hereby set aside.

15. Accordingly, the 15 years imprisonment is hereby set aside, and it is substituted with Imprisonment for Ten (10) Years, which will run from April 8, 2013.

16. I am conscious of Section 333(2) of theCriminal Procedure Code and I have taken into account the period which the applicant spent in custody pending conviction.Orders accordingly

DATED AND SIGNED AT ELDORET THIS 17TH DAY OF OCTOBER, 2023In the presence ofThe ApplicantMr.Yusuf for the State………………………………………R. NYAKUNDIJUDGE