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Court of AppealPartially AllowedCriminal Appeal No. 51 of 2015· [2019] KECA 414 (KLR)

Richard Ouma Ombai v Republic

Court of Appeal of Kenya
31 July 2019
AMAsike MakhandiaPKP. O. KiageOTOtieno-Odek
1,370 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that mandatory life sentences for defilement are unconstitutional, replacing one with a 20-year term.

What this practically means

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Executive summary

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The appellant was convicted of defilement of an eight-year-old girl contrary to Section 8(1) and (2) of the Sexual Offences Act and sentenced to life imprisonment by the trial magistrate, who stated that the court had no discretion on sentence. The High Court at Homa Bay (Majanja J.) dismissed his first appeal, affirming the sentence as the mandatory one prescribed for victims aged eleven or below. On second appeal, the appellant abandoned the appeal against conviction and challenged only the mandatory minimum life sentence, urging the Court to consider its constitutionality. The State, relying on the Supreme Court's decision in Francis Karioko Muruatetu & another v Republic, SC Petition Nos. 15 & 16 of 2015, conceded the Court's jurisdiction to determine an appropriate sentence, though it proposed thirty years given the victim's age. The Court of Appeal (Makhandia, Kiage and Otieno-Odek JJA) held that, in light of Muruatetu, the position that the life sentence was mandatory was no longer the law, mandatory sentences unconstitutionally removing judicial discretion. Noting that mitigation was already on record, the Court declined to remit the matter for resentencing and itself interfered with the sentence, setting aside the life imprisonment and substituting twenty years' imprisonment effective 30th September 2010, the date of the trial sentence, thereby crediting time served. The appeal against sentence accordingly succeeded; no costs order was made.

Key legal issues

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01

Constitutionality of the mandatory minimum life sentence under Section 8(2) of the Sexual Offences Act

Holding

The mandatory life sentence for defilement is no longer sustainable after Muruatetu, which held that mandatory sentences are unconstitutional because they strip courts of sentencing discretion.

Reasoning

The trial magistrate expressly stated she had no discretion on sentence, and the High Court affirmed the mandatory life sentence. Both decisions predated Muruatetu. The Supreme Court had held that mandatory sentences unconstitutionally remove judicial discretion to tailor sentence to each case. The Court therefore treated the mandatory life sentence under Section 8(2) as a nullity and exercised its own sentencing discretion, as it had earlier signalled in Jared Koita Injiri.

p. 2
02

The appropriate sentence to substitute for the set-aside mandatory life sentence

Holding

A determinate sentence of twenty years' imprisonment, running from the date of the trial court's sentence, was appropriate.

Reasoning

The appellant had offered mitigation and was treated as a first offender. The victim was eight years old, an aggravating factor the State emphasised, proposing thirty years. The Court saw no need to remit for resentencing since mitigation was on record, and itself interfered with the life sentence, substituting twenty years effective 30th September 2010, thereby crediting time already served.

p. 2

Legal principles established

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  • Following Muruatetu, a mandatory life sentence under the Sexual Offences Act that removes judicial discretion in sentencing is no longer good law; courts must consider mitigation and impose an individualised sentence.
  • Where mitigation is already on record, an appellate court may itself substitute an appropriate sentence rather than remitting the matter for rehearing on sentencing.

Court orders

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  1. 1.The life sentence meted upon the appellant and affirmed by the High Court is set aside
  2. 2.Substituted therefor is a sentence of twenty (20) years' imprisonment with effect from 30th September 2010, the date of the trial court's sentence
On appeal from
High Court of Kenya at Homa Bay
H.C. Cr. Appeal No. 127 of 2014
Jurisdiction invoked
Second appellate jurisdiction under the Criminal Procedure Code over appeals from the High Court (appeal against sentence only)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Richard Ouma Ombai v Republic", Case Analysis (2019). Criminal Appeal No. 51 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/414/eng@2019-07-31

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.