Jeremiah Gechiko Iteke v Director of Public Prosecutions

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MOMBASA PETITION NO. 230 OF 2019 JEREMIAH GECHIKO ITEKE....................................PETITIONER VERSUS DIRECTOR OF PUBLIC PROSECUTIONS..........RESPONDENT JUDGMENT ON RESENTENCING 1. The Petitioner herein JEREMIAH GECHIKO ITEKE was charged with three counts. The first two charges were of defilement contrary to section 8 (1) as read with section 8 (2) of the Sexual Offences Act. He was convicted and sentenced to 35 years. The alternative charge was committing an indecent act with a child contrary to Section 11 (1) of the Sexual Offences Act. 2. The particulars were that, “on diverse dates between May 2009 and 6 th July 2011 in Kisauni District of Coast Province caused his penis to penetrate the vagina of KC a child aged 14 years. The second count alleged that on diverse dates between October, 2010 and 13th July 2011 in Kisauni District of Coast province caused his penis to penetrate the vagina of NM a child aged 13 years. The alternative charge was based on the same facts. 3. He was sentenced to 35 years’ imprisonment. On appeal to the High Court his sentence was reduced to 20 years with regards to the first count while the sentence on the second count was affirmed. 4. The Petitioner is now in this court pursuant to the Supreme Court decision in Francis Karioko Muruatetu & Another v Republic [2017] eKLR in which the apex Court found the mandatory nature of the death sentence to be unconstitutional. 5. The Petitioner avers his sentence was reduced to the mandatory sentences under the sexual offences Act, and that the nature of the mandatory sentences was considered unconstitutional in the Muruatetu Case (Supra). 6. Ms. Wanjohi the learned prosecutor submitted that the Petitioner defiled two children and one of the victims was found to have been infected with a venereal disease, a scar that she has to bear all her life. Counsel submitted that such an offense cannot go unpunished as the need to protect young girls from such predatory behavior is paramount. Counsel submitted that during appeal, Petitioner’s sentence was reduced from 35 years to 20 years therefore exhausted his chance and cannot return to this court for a review of the sentence imposed. Counsel prayed that this Court does confirm the sentence already imposed on the Petitioner. 7. The Petitioner on his part submitted that during his appeal to the High Court, his sentence was reduced to 20 years’ imprisonment. The issue of the Petitioner is that the 20years term is the mandatory minimum sentence under Section 8(3) of the Sexual Offences Act. That the nature of minimum mandatory sentences was declared unconstitutional. 8. In mitigation the Petitioner stated he has spent 10 years in prison. During that period he has lived peacefully with fellow inmates and prison authorities. That he has transformed by acquiring a KCPE Certificate, and other courses. He states that he is reformed and remorseful and has promised not to repeat his crimes if given a chance to reunite with his family and society. He states that he is a first offender. 9. This Honorable court in Yusuf Shiunzi v Director of Public Prosecution [2020] eKLR stated that, “It is not disputed that the opinion of the Supreme Court with respect to mandatory sentences applies with equal force to minimum sentences. This is also supported by the Kenya Judiciary Sentencing Policy Guidelines where it is appreciated that: “Whereas mandatory and minimum sentences reduce sentencing disparities, they however fetter the discretion of courts, sometimes resulting in grave injustice particularly for juvenile offenders.” 10. I have carefully considered the Petition. This Court has the jurisdiction to interfere with the mandatory sentence of 20 years imposed on

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