Kazungu Chai Mangi v Director of Public Prosecutions

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MOMBASA PETITION NO. 221 OF 2019 KAZUNGU CHAI MANGI.................................................PETITIONER VERSUS DIRECTOR OF PUBLIC PROSECUTIONS.................RESPONDENT JUDGMENT ON RESENTENCING 1. The Petitioner herein KAZUNGU CHAI MANGI was charged with the Offence of defilement with violence contrary to section 8 (1) as read with section 8 (4) of the Sexual Offences Act. 2. The particulars were that, “on the diverse dates between the months of April and May, 2013 at Mtwapa Township of Kilifi County within Coast Province, intentionally caused his penis to penetrate into the vagina of GM a child of 16 years and mentally handicapped ” He was sentenced to 15 years imprisonment. His appeal to the High Court 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 (4) of the Sexual Offences Act reads thus: “A person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term not less than fifteen years.” 5. Ms. Wanjohi, learned prosecutor submitted that 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 since he was imprisoned, his family has been living desperately since he was the sole provider. The Petitioner stated that he has reconciled with his family which is ready to take him back. He has been in custody for 6 years during which time he has reformed and has been of good conduct. He is 52 years old and at a risk of contracting Covid-19. He urged this Court to consider the three years spent in remand as part of his sentence. He prayed to be set free. 7. As for resentencing jurisdiction, this 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.

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