Applicant/Accused v Republic (Resentencing Application)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT GARISSA CRIMINAL MISC. APPLICATION NO. 77 OF 2019 GEORGE GITONGA MBITI........................APPLICANT VERSUS REPUBLIC..................................................RESPONDENT RULING 1. The applicant/accused was charged with, tried and convicted and sentenced on 22/7/2010 by Resident Magistrate Hola to 20 years imprisonment for offence of defilement of a girl aged between 12 and 15 years. 2. He filed appeal No. 40 of 2012 in High Court at Garissa which dismissed same on 16/10/2012. He did not appeal to Court of Appeal but now comes to this court for resentencing. 3. In sentencing in the Hola Senior Resident Magistrate’s Court the trial magistrate held; “although accused appears remorseful, there is only one sentence prescribed under section 8(1) (3) of the Sexual Offences Act. The minimum sentence is an imprisonment of a term not less than 20 years and this court has no alternative.” Thus sentence of 20 years imposed. 4. The mandatory aspect of minimum sentence has been declared unconstitutional. Thus the applicant/accused has right to challenge the same in the instant matter. 5. The prosecution does not oppose same. Thus the court makes the following orders:(1) The minimum mandatory sentence award to the applicant in Criminal Case No. 33 of 2009 – Hola Senior Resident Magistrate’s Court on 22/7/2010 is set aside. (2) The applicant/accused referred back to Hola Senior Resident Magistrate’s Court for resentencing after court considers mitigation and period applicant/accused has been in custody since arrest. (3) Orders accordingly. DATED, DELIVERED AND SIGNED AT GARISSA THIS 5TH DAY OF NOVEMBER, 2019. ........................ C. KARIUKI JUDGE