Odero v Republic

the Court of Appeal decisions in the case of Eliud Waweru Wambui v R [2019] eKLR and in Evans Wanjala Siibi v Republic [2019] eKLR. 6. Mr. Marete learned prosecutor opposed the petition submitting that the petitioner betrayed the trust that the child had for him and that the action he committed was very grave. It was his submission that the punishment was sufficient and that he advocated for the harshest punishment possible which was within the law. 7. I have considered the arguments presented before this court. 8. The constitutionality of the mandatory minimum sentence meted out to the petitioner raises a question of law. The Court of Appeal in Christopher Ochieng v R [2018] eKLR Kisumu Criminal Appeal No. 202 of 2011 and in Jared Koita Injiri v R, Kisumu Criminal Appeal No. 93 of 2014 considered legality of minimum mandatory sentences under the Sexual Offences Act. The Court noted that the Supreme Court in Francis Karioko Muruatetu & another v Republic SC Petition No. 16 of 2015 held the mandatory death sentence prescribed for the offence of murder by Section 204 of the Penal Code was unconstitutional; that the mandatory nature deprives courts of their legitimate jurisdiction to exercise discretion not to impose the death sentence in an appropriate case; that a mandatory sentence fails to conform to the tenets of fair trial that accrue to the accused person under Article 25 of the Constitution. 9. On 6/7/2021; the Supreme Court, in the Muruatetu II Case clarified that the Muruatetu I was applicable only to sentences in murder cases only. The Supreme Court reiterated that its decision in the Muruatetu case did not invalidate mandatory sentences or minimum sentences in the Penal Code, the Sexual Offences Act or any other statute and accordingly cautioned as follows: “ It should be apparent from the foregoing that Muruatetu cannot be the authority for stating that all provisions of the law prescribing mandatory or minimum sentences are inconsistent with the Constitution.’’ 10. In the instant case, both the trial court and the appellate court found no reason to interfere with the sentence as enshrined in section 8(1) as read with section 8(2) of the Sexual Offences Act. In addition, the decisions cited by the petitioner herein, Machakos Criminal Petition No. E017 of 2021- Philip Mueke Maingi supra and Narok High Court Misc. Cr. Application No. 014 Baragoi Rotikensupra were both rendered by courts of concurrent jurisdiction and thus not binding on this court but merely persuasive. 11. I also note that defilement of a child of 10 years is a very heinous offence and hence, the heavy penalty of life imprisonment provided for in law upon conviction of the offender. 12. . In addition, sexual offences ordinarily cause trauma to, and compromises the integrity of the victim as a human being. Future references to or fiash-back of the incident of the sexual assault, either in the memory of the victim or by others or by whatever circumstances reminds of the trauma, shakes the very foundation of the life of the victim. It is such an offence with dire post traumatic consequences. 13. Nonetheless, whereas the petitioner should pay for his crime, and act as a deterrent for such debauchery, I should also give the applicant an opportunity to be re-integrated back into society and be a productive citizen. Life sentence may necessarily not achieve the purposes and objects of punishment, especially where the offender is committed to reform and has been rehabilitated through prisons rehabilitation programmes. 14. Accordingly, I exercise discretion and allow this petition for resentencing. I set aside the life imprisonment imposed on the petitioner and substitute it with a term sentence of thirty (30) years’ https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/4315/eng@2024-04-04 2

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imprisonment. The sentence shall be calculated taking into account the period served in remand custody before conviction and the original sentence imposed. 15. Signal to issue. 16. This file is closed. 17. I so order DATED, SIGNED AND DELIVERED AT KISUMU THIS 4TH DAY OF APRIL, 2024 R.E. ABURILI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/4315/eng@2024-04-04 3

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