1. The applicant by way of an undated Chamber Summons applied to this court for resentencing setting out the following:
i. THAT, the honourable court be pleased to certify this application as urgent and be heard on priority basis.
ii. THAT, I am the applicant herein seeking re-hearing of sentence pursuant to the decision in Edwin Wachira & 9 Others vs Republic Petition No 97 of 2021 at Mombasa High Court.
iii. THAT, the High Court in Petition No 97 of 2021 Edwin Wachira & 9 Others vs Republic as consolidated with Petition No 88 of 2021, 98 of 2021 and 57 of 2021 at Mombasa High Court declared that the impugned provisions of the Sexual Offences Act No 3 of 2006 prescribe minimum mandatory sentences, with no discretion to the trial court to determine the appropriate sentence to impose taking into account an accused person's individual circumstances and mitigation, such sentences fall foul of the right to a fair trial guaranteed under Article 50 of the Constitution because mitigation and sentencing are part of a fair trial process.
iv. THAT, further grounds shall be adduced in the sworn supporting affidavit of HARRISON NGUGI KINYANJUI among other grounds to be adduced during the hearing of this application.
2. The applicants seeks to be granted a definite sentence for he claims that life imprisonment is unconstitutional based on the decisions in Mwangi v Republic (Criminal Appeal 84 of 2015) 022] KECA 1106 (KKLR) (7 October 2022) , Manyeso v Republic (Criminal Appeal 12 of 2021) [2023] KECA 827 (KLR) (7 July 2023) (Judgment).
3. The applicant submitted that during the period he has been in custody he has reformed and has undertaken trainings that could be of help to him if allowed to re-join the society.
4. The applicant has invoked the jurisdiction of this court under Articles (21) (1) (2) (4) (a), 22 (1) (2) (b), 23, 25(a) (c) , 26 (1) (3), 27, 28, 48, 50 (1) (2) (p) (q).
5. This court has considered the submissions filed by the applicant and it is worth noting that he was tried with committing the offence of defilement contrary to Section 8(1) & (2) of the Sexual Offences Act No. 3 of 2006. The victim of the offence was proved to have been 8 years at the time of the offence thus the sentence available in law against him was the mandatory life imprisonment which the trial court imposed.
6. The jurisprudence on mandatoriness of sentences under the Sexual Offences Act was settled by the Supreme court in Petition No.018 of 2023 R Vs. Joshua Gichuki Mwangi where the Supreme court held:
“ Our findings hereinabove effectively lead us to the conclusion that thejudgment of the Court of Appeal delivered on 7th October, 2022 is one for setting aside. In any case, the sentence imposed by the trial court against the Respondent and affirmed by the first appellate court was lawful and remains lawful as long as Section 8 of the Sexual Offences Act remains valid. We reiterate that the Court of Appeal had no jurisdiction to interfere with that sentence.”
7. The supreme court overturned the decision of the Court Appeal which sought to define what a life sentence is. It therefore follows that in line with the decision of the Supreme Court where the sentence of life imprisonment is prescribed as the only sentence, the trial courts as well as this court has no discretion on the matter and cannot purport to substitute that sentence for a given period of imprisonment.
8. The applicant has invited this court to exercise discretion which is not available to it thus this court finds that the application is misconceived and is therefore dismissed.
9. The courts are to await any reforms that the legislature may introduce on the matter of sentences under the Sexual Offences Act. It is for the public to lobby through their elected representatives in parliament or Petition the Honorable Attorney General to advise government to effect changes in the law.
10. In the meantime, the life imprisonment sentence remains lawful and Constitutional.
11. The application is therefore dismissed.
12. It is so ordered.
i. THAT, the honourable court be pleased to certify this application as urgent and be heard on priority basis.
ii. THAT, I am the applicant herein seeking re-hearing of sentence pursuant to the decision in Edwin Wachira & 9 Others vs Republic Petition No 97 of 2021 at Mombasa High Court.
iii. THAT, the High Court in Petition No 97 of 2021 Edwin Wachira & 9 Others vs Republic as consolidated with Petition No 88 of 2021, 98 of 2021 and 57 of 2021 at Mombasa High Court declared that the impugned provisions of the Sexual Offences Act No 3 of 2006 prescribe minimum mandatory sentences, with no discretion to the trial court to determine the appropriate sentence to impose taking into account an accused person's individual circumstances and mitigation, such sentences fall foul of the right to a fair trial guaranteed under Article 50 of the Constitution because mitigation and sentencing are part of a fair trial process.
iv. THAT, further grounds shall be adduced in the sworn supporting affidavit of HARRISON NGUGI KINYANJUI among other grounds to be adduced during the hearing of this application.
2. The applicants seeks to be granted a definite sentence for he claims that life imprisonment is unconstitutional based on the decisions in Mwangi v Republic (Criminal Appeal 84 of 2015) 022] KECA 1106 (KKLR) (7 October 2022) , Manyeso v Republic (Criminal Appeal 12 of 2021) [2023] KECA 827 (KLR) (7 July 2023) (Judgment).
3. The applicant submitted that during the period he has been in custody he has reformed and has undertaken trainings that could be of help to him if allowed to re-join the society.
4. The applicant has invoked the jurisdiction of this court under Articles (21) (1) (2) (4) (a), 22 (1) (2) (b), 23, 25(a) (c) , 26 (1) (3), 27, 28, 48, 50 (1) (2) (p) (q).
5. This court has considered the submissions filed by the applicant and it is worth noting that he was tried with committing the offence of defilement contrary to Section 8(1) & (2) of the Sexual Offences Act No. 3 of 2006. The victim of the offence was proved to have been 8 years at the time of the offence thus the sentence available in law against him was the mandatory life imprisonment which the trial court imposed.
6. The jurisprudence on mandatoriness of sentences under the Sexual Offences Act was settled by the Supreme court in Petition No.018 of 2023 R Vs. Joshua Gichuki Mwangi where the Supreme court held:
“ Our findings hereinabove effectively lead us to the conclusion that thejudgment of the Court of Appeal delivered on 7th October, 2022 is one for setting aside. In any case, the sentence imposed by the trial court against the Respondent and affirmed by the first appellate court was lawful and remains lawful as long as Section 8 of the Sexual Offences Act remains valid. We reiterate that the Court of Appeal had no jurisdiction to interfere with that sentence.”
7. The supreme court overturned the decision of the Court Appeal which sought to define what a life sentence is. It therefore follows that in line with the decision of the Supreme Court where the sentence of life imprisonment is prescribed as the only sentence, the trial courts as well as this court has no discretion on the matter and cannot purport to substitute that sentence for a given period of imprisonment.
8. The applicant has invited this court to exercise discretion which is not available to it thus this court finds that the application is misconceived and is therefore dismissed.
9. The courts are to await any reforms that the legislature may introduce on the matter of sentences under the Sexual Offences Act. It is for the public to lobby through their elected representatives in parliament or Petition the Honorable Attorney General to advise government to effect changes in the law.
10. In the meantime, the life imprisonment sentence remains lawful and Constitutional.
11. The application is therefore dismissed.
12. It is so ordered.