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JudgmentMWANDIA MWANZIA VS ODPP5 min read

MWANDIA MWANZIA VS ODPP

High Court at Mombasa High Court · · Wendy Micheni


(Originating from Mombasa CMS CR NO 1875  OF 2015)

  1. The applicant is a Kenyan citizen currently serving 15 years sentence at Shimo la Tewa Medium prison charged and convicted with the offence of gang rape.
  2. The Respondent is the DPP and office established pursuant to Act 157 of the Constitution with of institution and undertaking criminal proceedings against any person before any court other than court martial in respect of any office recognized by law of Kenya.
  3. The Applicant filed this undated application headed review while in custody. He relied on Section 6 of the CPC, which says the high court may pass any sentence authorized by law.  He also cited Section 4 (2) of the probation of offenders Act 64 (2012) which empowers the court to release offenders on conditional release.
  4. The section states that where  any  person is convicted of any offence by the court and the court is of an opinion that having regard to the youth, character, antecedents home surroundings, health and mental  conditions of the offender  to the  nature of the  extenuating circumstance in  which the offence was committed , the  court may in sentencing him to any punishment probation order and may require  the offender to  enter in recognizance with  or without sureties  in which sum as the  court may deem fit.
  5. He prayed;
    1. That, the court does declare that sexual offenders are social offenders and thus suitable for placement on probation pursuant to Article   23 of the Constitution.
    2. That, the court does declare that Section 4 (2) of the probation   offenders Act (Cap 64) is compatible with Article 51 of the Constitution.
    3. That, the court does declare that a convict serving a definite sentence is liable for review of sentence after serving part of the sentence since justification for is not static
    4. That, the court does consider that the family is a fundamental unit of the society pursuant to Article   45 of the constitution.
    5. That, the court does make an order that the applicant is fit for placement on probation and the term served by the applicant is sufficient enough and is placement.
  6. A sentence review report dated 30th July 2024  was  prepared by one Mr. Stephen Muthoka.  It shows that  the inmate hails from an extended family which has demonstrated willingness to support in his rehabilitation process  in case he benefits from current sentencing guidelines. The community members and the family admit and confirm that despite his imprisonment, the inmate has remained in close communication with the family in the village and that they are more eager to accommodate him back once his sentence comes to an end. Additionally, with the passing on of the parents the fairly was immensely affected.
  7. The recommendation was that inmate is suitable for a non-custodial sentence and/or unconditional release. Considering his health status and TB infection which has been ranked highly infections and in consideration of the applicable laws  the inmate  can be  sentenced to serve 14 months’ probation  sentence as a reminder of his sentence to  access  the basis and necessary medical attention which would save his life from h eminent danger at hand.
  8. The court notes that the Applicant had filed an Appeal and the sentence was reduced from 20 years imprisonment to 15 years.
  9. The court is also aware that the dust is yet to settle on the sentencing in sexual offences.
  10. The Supreme Court of Kenya recently did speak in a very firm voice to the effect that the   minimum sentence does not take away the court’s discretion. This was in the case of Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) (Petition E018 of 2023) [2024] KESC 34 (KLR). The Apex court held verbatim as follows;

56.Mandatory sentences leave the trial court with absolutely no discretion such that upon conviction, the singular sentence is already prescribed by law. Minimum sentences however set the floor rather than the ceiling when it comes to sentences. What is prescribed is the least severe sentence a court can issue, leaving it open to the discretion of the courts to impose a harsher sentence. In fact, to use the words mandatory and minimum together convolutes the express different definitions given to each of the two words. Although, the term ‘mandatory minimum’ can be found used in different jurisdictions, including the United States, and in a number of academic articles, it is not applicable as a legally recognised term in Kenya. In this country, a mandatory sentence and minimum sentence can neither be used interchangeably nor in similar circumstances as they refer to two very different set of meanings and circumstances.

  1. For clarity and reiteration, the Supreme Court in the above decision maintained thus;

66.We must also reaffirm that, although sentencing is an exercise of judicial discretion, it is Parliament and not the Judiciary that sets the parameters of sentencing for each crime in statute. As such, striking down a sentence provided for in Statute, must be based not only on evidence and sound legal principles but on an in-depth consideration of public interest and the principles of public law that informed the making of that specific law. A judicial decision of that nature cannot be based on private opinions, sentiments, sympathy or benevolence. It ought not to be arbitrary, whimsical or capricious. However, where a sentence is set in Statute, the Legislature has already determined the course, unless it is declared unconstitutional, based on sound principles and clear guidelines, upon which the Legislature should then act. Suffice to say, where Parliament enacts legislation, the Judicial arm should adjudicate disputes based on the provisions of the law.

  1. For that reason, this court is unable to review the sentence any further below the minimum sentence. Needless to add, in the aforementioned case, the Apex Court enhanced the sentence which had been reduced. I will not disturb the sentence herein.
  2. Accordingly, the court dismisses the application.
  3. The applicant to complete his sentence and the prison authorities to ensure that he receives the appropriate medication on the TB.

Dated signed and delivered virtually this 26th day of September 2024

Wendy Kagendo

Judge

Delivered in the presence of

Applicant in person

Ms Maina for the state

Bebora court Assistant

    MWANDIA MWANZIA VS ODPP MWANDIA MWANZIA VS ODPP