- Elly Wangila, the Applicant, was charged with the offence of defilement contrary to section 8 (1) (3) of the Sexual Offences Act No. 3 of 2006 vie Criminal Case No. 15 of 2018. He was sentenced to 20 years imprisonment.
- In his application he seeks a reduction of the 20 years imprisonment claiming that it is not deserving it is a harsh sentence and that it infringes on a fair trial guaranteed vide Article 5 of the constitution and that he has been deprived of a lesser sentence. He also claims that he has been rehabilitated.
- The application was opposed. The Respondent submitted that the applicant is seeking a review of the 20-year sentence from an offence of defilement under Section 8 (1) (3) of the Sexual Offences Act. The said section provides for a sentence of not less than 20 years. It is argued that this is a prescribed sentence in law and therefore reducing it would be illegal.
- I have considered the applicant’s application and the submissions by the Respondent. The minimum sentence provided in law for one charged under Section 8 (1) (3) of the Sexual Offence Act is 20 years imprisonment. The Supreme Court in Republic vs. Joshua Gichuki Mwangi and 4 Others, Petition No. E018 of 2023, concluded that the mandatory minimum sentences in the Sexual Offences Act – including life imprisonment for offences under section 8(2) of the Act – are not unconstitutional; and that trial courts have no discretion to go below the minimum statutory minimum sentences in sexual offences . The Supreme Court decision is binding to this court under the doctrine of stare decisis. I can’t review the sentence of 20 years. It was a legal sentence and a minimum sentence. This application has no merit and is dismissed.
Dated, Signed and Delivered at BUNGOMA on this 13th day of February 2025
R.E. OUGO
JUDGE
In the presence of:
Elly Wangila - Applicant
Miss Matere - Respondent/ ODDP : Wilkister – C/A