Lawrence Kamande Maina v Republic

d. 6. The court imposed a huge sentence. The Appellant was charged with defilement contrary to Section 8(1) & (3) of the Sexual Offences Act No. 3 of 2006. PW1 was said to be 15 years old. I reproduce Section 8 (1)-(4) of the Sexual Offences Act as follows: Defilement (1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement. (2) A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life. (3) 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 of not less than twenty years. (4) 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 of not less than fifteen years. 7. The appeal is against sentence only and the court will not delve into the testimonies and evidence before the trial court. The court's discretion in sentencing is permissible and must be exercised in accordance with the law. In the cases of defilement, the High Court and subordinate courts were bound by the Court of Appeal decision in the case of Dismas Wafula Kilwake v Republic [2018] eKLR where it held that Section 8 of the Sexual Offences Act must be interpreted so as not to take away the discretion of the court in sentencing offences. 8. With the directions of the Supreme Court in Francis Karioko Muruatetu & another v Republic; Katiba Institute & 5 others (Amicus Curiae) [2021] eKLR (Muruatetu II), which clarified that the case of Francis Karioko Muruatetu & Another v Republic [2017 eKLR (Muruatetu I) was applicable to resentencing in murder cases only, courts cannot resentence in sexual offences. 9. The case of sentence review for sexual offences remains a matter of discretion, with a rider that the minimum sentences are not unconstitutional. On 3rd December 2021, while the Supreme Court directions of 6th July 2021 in Muruatetu II were still in place, in the case of GK v Republic (Criminal Appeal 134 of 2016) [2021] KECA 232 (KLR), the Court of Appeal reiterated that the law was no longer rigid with regard to minimum mandatory sentences and would take into account the peculiar circumstances of each case. 10. Further, on 15th May 2022, after the directions of the Supreme Court, in the case of Maingi & 5 others v Director of Public Prosecutions & another (Petition E017 of 2021) [2022] KEHC 13118 (KLR), Odunga J (as he then was) held that to the extent that the Sexual Offences Act prescribed minimum mandatory sentences with no discretion to the trial court to determine the appropriate sentence to impose, such sentences fell afoul of Article 28 of the Constitution of Kenya, 2010. The Honourable Judge, however, clarified that it was not unconstitutional to mete out the mandatory sentence if the circumstances of the case warranted such a sentence. 11. The discretion to sentence permits a balanced and fair sentencing, which is a hallmark of enlightened criminal justice and proper consideration of the individual circumstances of each accused person is essential for substantive justice. In State vs. Tom, State v. Bruce (1990) SA 802 (A), Smalberger, JA, https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3615/eng@2026-03-18 2

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writing for the majority of Supreme Court of South Africa, made the following pertinent observations about sentencing in general and mandatory sentences in particular: “ The first principle is that the infliction of punishment is pre-eminently a matter for the discretion of the trial court ... That courts should, as far as possible, have an unfettered discretion in relation to sentence is a cherished principle which calls for constant recognition. Such discretion permits of balanced and fair sentencing, which is a hallmark of enlightened criminal justice. The second, and somewhat related principle, is that of the individualization of punishment, which requires proper consideration of the individual circumstances of each accused person. This principle too is firmly entrenched in our law... A mandatory sentence runs counter to these principles. (I use the term “mandatory sentence” in the sense of a sentence prescribed by the legislature which leaves the court with no discretion at all -either in respect of the kind of sentence to be imposed or, in the case of imprisonment, the period thereof.) It reduces the court’s normal sentencing function to the level of a rubber stamp. It negates the ideal of individualization. The morally just and the morally reprehensible are treated alike. Extenuating and aggravating factors both count for nothing. No consideration, no matter how valid or compelling, can affect the question of sentence... Harsh and inequitable results inevitably flow from such a situation. Consequently, judicial policy is opposed to mandatory sentences...as they are detrimental to the proper administration of justice and the image and standing of the courts.” 12. The court herein granted the minimum sentence of 20 years. The sentence was the available sentence and accordingly awarded. The appeal of the sentence lacks merit and is dismissed. 13. The Applicant was arrested on 3.4.2019. He was granted a bond of Ksh 100,000/=. He did not, however, get out on bond throughout the trial. The law under Section 333(2) of the Criminal Procedure Code provides as follows: “ Subject to the provisions of Section 38 of the Penal Code, every sentence shall be deemed to commence from and to include the whole of the day of, the date on which it was pronounced, except where otherwise provided in this Code. Provided that where the person sentenced under sub section (1) has prior, to such sentence shall take account of the period spent in custody.” 14. It is clear from the above proviso that the law requires courts to take into account the period the convict spent in custody. The Court of Appeal in Ahamad Abolfathi Mohammed & Another vs Republic [2018]eKLR stated as follows as regards time spent in custody: “ The second is the failure by the court to take into account in a meaningful way, the period that the appellants had spent in custody as required by section 333(2) of the Criminal Procedure Code. By dint of section 333(2) of the Criminal Procedure Code, the court was obliged to take into account the period that they had spent in custody before they were sentenced. Although the learned judge stated that he had taken into account the period the appellants had been in custody, he ordered that their sentence shall take effect from the date of their conviction by the trial court. With respect, there is no evidence that the court took into account the period already spent by the appellants in custody. “Taking into account” the period spent in custody must mean considering that period so that the imposed sentence is reduced proportionately by the period already spent in custody. It is not enough for the court to merely state that it has taken into account the period already spent in custody and still order the sentence to run from the date of the conviction because that amounts to https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3615/eng@2026-03-18 3

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ignoring altogether the period already spent in custody. It must be remembered that the proviso to section 333(2) of the Criminal Procedure Code was introduced in 2007 to give the court power to include the period already spent in custody in the sentence that it metes out to the accused person. We find that the first appellate court misdirected itself in that respect and should have directed the appellants’ sentence of imprisonment to run from the date of their arrest on 19th June 2012.” 15. This is buttressed in the Judiciary Sentencing Policy Guidelines, 2023, as follows: The proviso to Section 333(2) of the Criminal Procedure Code obligates the court to take into account the time already served in custody if the convicted person had been in custody during the trial. Failure to do so impacts on the overall period of detention which may result in an excessive punishment that is not proportional to the offence committed. In determining the period of imprisonment that should be served by an offender, the court must take into account the period in which the offender was held in custody during the trial.” 16. The Applicant remained in custody throughout. Therefore, Section 333(2) of the Criminal Procedure Code requires, nay obligates, the court to take into account the period spent in custody pending trial during sentencing. It is clear that the time spent in custody was not taken into account. The period spent in custody must be considered when calculating the imposed sentence. Therefore, the 20-year sentence shall commence on 3.4.2019, the date of arrest. Determination 17. I make the following final orders: a. This appeal is dismissed. However, the 20 years sentence shall commence on 3.4.2019, the date of arrest. b. File is closed. DELIVERED, DATED AND SIGNED AT NYERI ON THIS 18TH DAY OF MARCH, 2026. JUDGMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM. KIZITO MAGARE JUDGE In the presence of: Appellant present Mr. Kihara for the State Court Assistant – Michael/Martin https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3615/eng@2026-03-18 4

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