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JudgmentPETER MUEMA JULIUS VS The Republic9 min read

PETER MUEMA JULIUS VS The Republic

High Court at Mombasa High Court · · Wendy Micheni



(Originating from Mombasa CHIEF MAGISTRATE COURT’S CR E022 OF 2021 IN THE SRM’S COURT AT SHANZU ( HON. D. ODHIAMBI –R.M {as he was then})

Preliminaries

  1. Before this Court is an undated Notice of Motion application  that was lodged on 8th March, 2023 which sought  the review of the Applicant’s 10 years’ imprisonment.
  2. The Applicant is a Kenyan citizen currently serving 10 years sentence after being charged and convicted with the offence of Rape contrary to Section 3(1)(a)(b)(3) of the Sexual Offences Act No. 3 of 2006.
  3. The Particulars of the offence being that on the 25th day of January, 2021 at Mtomondoni area in Mtwapa Township within Kilifi County of Coast Region, intentionally and unlawfully caused his penis to penetrate the vagina of Dorothy Auma Oluoch an adult of 24 years without her consent.
  4. In the alternative, the Applicant faced the charge of committing an indecent act with an adult contrary to Section 11(A) of the Act. The particulars of this alternative charge were that on the 25th day of January, 2021 at Mtomondoni area in Mtwapa Township within Kilifi County of Coast Region, intentionally and unlawfully touched the vagina of Dorothy Auma Oluoch an adult of 24 years.
  5. The Applicant sought to have this Court review his sentence preferred by Hon. D. Odhiambo to a lesser sentence having already served 2 years.
  6. A sentence review report dated 17th September, 2024 was prepared by one Mr. Mutisya Kioko.  It showed that the Applicant a 38-year-old was currently at Malindi Prison and hailed from Kikambala, Kilifi County. He had already served 2 years and 9 months that is with an exclusion of the remand period.
  7. The officer had conducted interviews with  the inmate, a converstion with a family frend and now the Applicant’s property agent, inquiries from the prison warden and review of court records.
  8. Further in the report it was indicated that the Applicant denied committing the offence stating that he was imprisoned without due process and that he was imprisoned because he was ignorant of the law thus he was supposed to be out of custody. He complained about the court process and the entire conviction despite beihng convicted. The prison authorities report him to be a responsible and enlightened on how to live within the confined of the law.
  9. The Applicant according to the report indicated his biggest desire was to have the time spent in custody be considered. On sentence review, he said he did not mind if the court reviewed his sentence or not. He seemed not remorseful of his actions and avoided sharing much information on the offence.
  10. According to the report, the Applicant looked down on the victim and indicated that he did not rape her since she was his wife. He had been observed not to be trustworthy since much information he provided turned out to be inaccurate as compared to information gathered from family members and associates in Mtwapa township.
  11. The report indicated that the Applicant was not a first time offender as he had previously been charged and convicted of a similar offence and served ten (10) years sentence in Shimo La Tewa Maximum Prison in Criminal Case Number: SO 91 of 2012. He was discharged on 16th July, 2019. The victim as contacted to no avail therefore her views on the review were not captured.
  12. The recommendation was that the Applicant was not a first time offender and he had a history of committing sexual offences as previously highlighted herein. The officer indicated that the Applicant was not suitable for a non – custodial order or an early release. The Honourable Court was urged to use its discretion on the sentence review.

Analysis and Determination

  1. Considering the pleadings and submissions of the parties, it is my view that the main issue for determination is whether the undated application filed is merited. The offence with which, the applicant is convicted of and sentenced is provided for under Section 3(1) as read with Section 3 (3) of the Sexual Offences Act as follows: -

(1) A person commits the offence termed rape if—

(a)he or she intentionally and unlawfully commits an act which causes penetration with his or her genital organs;

(b) the other person does not consent to the penetration; or

(c) the consent is obtained by force or by means of threats or intimidation of any kind.

(3) A person guilty of an offence under this section is liable upon conviction to imprisonment for a term which shall not be less than ten years but which may be enhanced to imprisonment for life.

  1. In considering the application, I note that the revisionary power of the High Court is provided for under Section 362 of the Criminal Procedure Code (Cap 75 of the Laws of Kenya)which states as follows:

“The High Court may call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any such subordinate court.”

  1. However, the section is to be read together with Section 364 of the Code which states as follow: -

“(1) In the case of a proceeding in a subordinate court the record of which has been called for or which has been reported for orders, or which otherwise comes to its knowledge, the High Court may—

(a)in the case of a conviction, exercise any of the powers conferred on it as a court of appeal by sections 354, 357 and 358, and may enhance the sentence;

(b)in the case of any other order other than an order of acquittal, alter or reverse the order.

(2) No order under this section shall be made to the prejudice of an accused person unless he has had an opportunity of being heard either personally or by an advocate in his own defence: Provided that this subsection shall not apply to an order made where a subordinate court has failed to pass a sentence which it was required to pass under the written law creating the offence concerned.

(3) Where the sentence dealt with under this section has been passed by a subordinate court, the High Court shall not inflict a greater punishment for the offence which in the opinion of the High Court the accused has committed than might have been inflicted by the court which imposed the sentence.

(4) Nothing in this section shall be deemed to authorize the High Court to convert a finding of acquittal into one of conviction.

(5) When an appeal lies from a finding, sentence or order, and no appeal is brought, no proceeding by way of revision shall be entertained at the insistence of the party who could have appealed.”

  1. From the foregoing provisions, it is clear that the High Court may exercise revisional jurisdiction in case of a conviction or in any other order.  This jurisdiction will be exercised if the court is satisfied that any finding, sentence or order recorded or passed or the regularity of any proceedings of any court which is sub-ordinate to the High Court did not meet the required standards of correctness, legality and propriety.  What may not be reviewed under this jurisdiction is an order of acquittal.
  2. In the present application, the Applicant challenges the exercise of judicial discretion by the trial court. This court can only interfere with such exercise of sentencing discretion in circumstances that are now settled in law. The Court of Appeal in Ahmad Abolfathi Mohammed & Another – Versus - Republic Criminal Appeal No. 135 of 2016 (unreported) held at Page 25 thus:

“As what is challenged in this appeal regarding sentence is essentially the exercise of discretion, as a principle this Court will normally not interfere with exercise of discretion by the court appealed from unless it is demonstrated that the court acted on wrong principle; ignored material factors; took into account irrelevant considerations; or on the whole that the sentence is manifestly excessive. In Bernard Kimani Gacheru v. Republic, Cr App No.188 of 2000 this Court stated thus:

“It is now settled law, following several authorities by this Court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal, the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor, or took into account, some wrong material, or acted on a wrong principle. Even if, the Appellate Court feels that the sentence is heavy and that the Appellate Court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, any one of the matters already stated is shown to exist.”

  1. The court is also aware that the dust is yet to settle on the sentencing in sexual offences. 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 – Versus - 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……….

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. In the present application, it was clear to the court that indeed the trial court did not take into account the period that the Applicant was in remand custody when it sentenced him to serve the custodial sentence. This court has perused the trial court’s notes when it sentenced the Applicant. The court observed that the minimum custodial sentence that is provided under Section 3(3) of the Sexual Offences Act is ten (10) years imprisonment. Translating to the custodial period the Applicant was sentenced to serve. The Applicant has already served 2 years in remant custody prior to his conviction. This was contrary to the provisions of Section 333(2) of the Criminal Procedure Code that requires this period to be taken into consideration.
  2. In the premises therefore, the custodial sentence of ten (10) years imprisonment imposed by the trial court shall be reduced by two years with effect from 29th December, 2021. The Applicant shall therefore serve a custodial sentence of eight years with effect from that date.

IT IS SO ORDERED ACORDINGLY.

RULING DELIVERED THROUGH MICROSOFT TEAM VIRTUAL, SIGNED AND DATED AT MOMBASA THIS …….31ST…………DAY OF ……………OCTOBER…………..…….., 2024

……………………………………………………..

HON. LADY JUSTICE W. M. KAGENDO

(JUDGE)

HIGH COURT OF KENYA AT MOMBASA

(CRIMINAL DIVISION)

In the presence of:

M/s. Bebora, Court Assistant;

……………Ms. Maina……………State Counsel;

………………………………………….…Applicant.