Samuel Kilale Maghanga v Director of Public Prosecutions

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MOMBASA PETITION NO. 228 OF 2019 SAMUEL KILALE MAGHANGA..................................................PETITIONER VERSUS DIRECTOR OF PUBLIC PROSECUTIONS..............................RESPONDENT JUDGMENT ON RESENTENCING 1. The Petitioner herein SAMUEL KILALE MAGHANGA was charged with the Offence of defilement contrary to section 8 (1) as read with Section 8 (3) of the Sexual Offences Act. 2. The particulars were that, “on the 1st of December 2009 at [particulars withheld] village unlawfully and intentionally caused his penis to penetrate the vagina of DM a child aged 12 years old”. He was sentenced to 20 years imprisonment. His appeal to the High Court and to the Court of Appeal did not succeed, his conviction and sentence was upheld. 3. The Petitioner is now in this court pursuant to the Supreme 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. 4. The Petitioner avers that the mandatory nature of the sentence denied the trial court the opportunity to consider mitigating circumstances. Section 8 (3) of the Sexual Offences Act reads thus: “A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term not less than twenty years.” 5. Ms. Wanjohi the learned prosecutor submitted that the Petitioner is the uncle to the child. The Petitioner knowing the victim to be a child forcefully defiled her inflicting severe pain and injuries to her. The Petitioner’s act violated the child’s right to protection. Counsel urged this court to confirm the conviction and sentence meted by the trial court. 6. In mitigation the Petitioner stated that he was a first offender; that he left behind his wife and 4 children who have been living as destitutes since he was locked up. He has been in custody for 10 years. He averred that he has reformed and has been of good conduct in the prison. He prayed this Court to review his sentence. 7. 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.” 8. In Dismas Wafula Kilwake v R [2018] eKLR, the court of Appeal sitting in Kisumu had the following to say about the mandatory minimum sentences prescribed in the sexual offences Act: “In principle, we are persuaded that there is no rational reason why the reasoning of the Supreme Court [in Francis Karioko Muruatetu & Another v. Republic, SC Pet. No. 16 of 2015], which holds that the mandatory death sentence is unconstitutional for depriving the courts discretion to impose an appropriate sentence depending on the circumstances of each case, should not apply to the provisions of the Sexual Offences Act, which do exactly the same thing. Being so persuaded, we hold that the provisions of section 8 of the sexual Offences Act must be interpreted so as not to take away the discretion of the court in sentencing. Those provisions are indicative of the seriousness with which the Legislature and the

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