John Kagunda Kariuki v Republic [2019] eKLR

John Kagunda Kariuki v Republic [2019] eKLR

Case Metadata

Case Number:

Miscellaneous Criminal Application 88 of 2019

Parties:

John Kagunda Kariuki v Republic

Date Delivered:

17 Jul 2019

Case Class:

Criminal

Court:

High Court at Nakuru

Case Action:

Ruling

Judge(s):

Joel Mwaura Ngugi

Citation:

John Kagunda Kariuki v Republic [2019] eKLR

Court Division:

Criminal

County:

Nakuru

Case Summary:

Courts have the discretion to depart from prescribed minimum sentences when sentencing convicted persons

John Kagunda Kariuki v Republic

Miscellaneous Criminal Application No. 88 of 2019

High Court at Nakuru

J Ngugi, J

July 17, 2019

Reported by Ian Kiptoo

Criminal Law

– sentencing – mandatory sentences - prescribed minimum sentences – exercise of courts discretion - whether Courts had discretion to depart from prescribed minimum sentences when sentencing convicted persons

Brief facts

The applicant was charged with the offence of defilement under the Sexual Offences Act. He was tried, convicted and sentenced to a minimum sentence of twenty (20) years imprisonment under section 8(3) of the Sexual Offences Act. The applicant sought for a review of his sentence after his appeal was dismissed in its entirety.

The applicant claimed that the High Court had jurisdiction to re-sentence him and wished to serve the remainder of his sentence in probation rather than in Prison.

Issues

Whether courts had discretion to depart from prescribed minimum sentences when sentencing convicted persons.

Whether persons sentenced to death pursuant to mandatory provisions were entitled to new sentence hearings by the High Court following the Court of appeal’s decision in the

Dismas Wafula Kilwake v R [2018] eKLR

case.

Held

In the

Francis Karioko Muruatetu & another v Republic [2017] Eklr

case. The Supreme Court outlawed mandatory death penalty for murder as unconstitutional and struck down section 204 of the Penal Code to the extent that it prescribed mandatory death sentence upon conviction for murder. The reasoning in the

Muruatetu Case

respecting section 204 of the Penal Code (the penalty section for murder) had been extended by the Court of Appeal to the mandatory death penalty in robbery with violence cases and probably all other similar mandatory death sentences. Furthermore, the reasoning was also extended to sentences imposed by the Sexual Offences Act – and possibly all other statutes prescribing minimum sentences by the Court of appeal.

The

Dismas Wafula Kilwake v R [2018] eKLR

progressive decisional law required courts to pay attention to individual aspects of the case while sentencing even for convictions under the Sexual Offences Act which had prescribed minimum sentences. Where there were compelling reasons to depart from the prescribed minimum, which was treated as indicative of the sentence to be imposed, the court could impose a different sentence.

Unlike the decision in

Muruatetu

case and other cases where the death penalty was imposed, the

Dismas

case did not operate retroactively. It was a decision given the ordinary common law mode which did not entitle all other people who could have benefitted from the new development in decisional law to approach the High Court afresh for review of the sentences imposed. Instead, the principles announced in the case would apply to future cases. In other words, persons whose appeals had already been heard by the High Court were not entitled to file fresh applications for re-sentencing in accordance with the new decisional law. To reach a different conclusion would lead to an ungovernable situation where all previously sentenced prisoners would seek review of their sentences.

Only prisoners who had been sentenced to death pursuant to mandatory provisions of the law were entitled to new sentence hearings. For all others, they were entitled to urge the new decisional law in their appeals in a bid to get lower sentences and no more. They could not bring new applications for re-sentencing. In the instant case, the applicant’s appeal had already been heard by the High Court. He could not return to the High Court for a review of the sentence imposed. He was at liberty to make an argument for reduced sentence at the Court of Appeal. The applicant could not, in the circumstances of the case, benefit from the doctrine propounded in the

Muruatetu Case.

Application dismissed.

Extract:

Cases

East Africa

1.

Kilwake, Dismas Wafula v Republic

Criminal Appeal No 129 of 2014[2018] eKLR – (Explained)

2.

Kittiny, William Okungu v Republic

Criminal Appeal No 56 of 2013 [2018] eKLR- (Mentioned)

3.

Muruatetu, Francis Karioko & another v Republic

Criminal Petition No 1 of 2017 [2017] eKLR – (Explained)

Statutes

East Africa

1.Penal Code (cap 63) section 204 – (Interpreted)

2.Sexual Offences Act, 2006 (Act No 3 of 2006) section 8(3) – (Interpreted)

Advocates:

None Mentioned

Case Outcome:

Application dismissed

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

IN THE HIGH COURT OF KENYA

AT NAKURU

MISC. CRIMINAL APPLICATION NO. 88 OF 2019

JOHN KAGUNDA KARIUKI....................................APPLICANT

VERSUS

REPUBLIC................................................................................STATE

RULING

1.

John Kagunda Kariuki, the Applicant herein, was charged with the offence of defilement under the Sexual Offences Act. He was tried and convicted at the Nakuru Chief Magistrate’s Court. He was sentenced to a minimum sentence of twenty (20) years imprisonment under section 8(3) of the Sexual Offences Act.

2.

The Applicant was dissatisfied with his conviction and sentence. He appealed to the High Court. His appeal was dismissed in its entirety. The conviction and sentence were affirmed.

3.

The Applicant is now back in the High Court with a new application. He seeks for a review of his sentence. He claims that the High Court has jurisdiction to re-sentence him. He wishes to serve the remainder of his sentence in Probation rather than in Prison custody. He says that he is fully reformed in Prison and that he was the sole bread winner and his family is suffering immensely due to his absence.

4. It would appear that the Applicant has grounded his Application on the Muruatetu doctrine. This was the decision of the Supreme Court in

Francis Karioko Muruatetu & Another v Republic [2017] Eklr

. In the

Muruatetu Case

, the Supreme Court outlawed mandatory death penalty for murder as unconstitutional and struck down section 204 of the Penal Code to the extent that it prescribed mandatory death sentence upon conviction for murder.

5. The reasoning in

Muruatetu Case

respecting section 204 of the Penal Code (the penalty section for murder), has been extended by the Court of Appeal to the mandatory death penalty in robbery with violence cases and probably all other similar mandatory death sentences. That was in

William Okungu Kittiny v R [2018] eKLR

.

6. The reasoning in

Muruatetu Case

was also extended to sentences imposed by the Sexual Offences Act – and possibly all other statutes prescribing minimum sentences by the Court of appeal in a recent decision 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 society take the offence of defilement. In appropriate cases therefore, the court, freely exercising its discretion in sentencing, should be able to impose any of the sentences prescribed, if the circumstances of the case so demand. On the other hand, the court cannot be constrained by section 8 to impose the provided sentences if the circumstances do not demand it. The argument that mandatory sentences are justified because sometimes courts impose unreasonable or lenient sentences which do not deter commission of the particular offences is not convincing, granted the express right of appeal or revision available in the event of arbitrary or unreasonable exercise of discretion in sentencing.

The Sentencing Policy Guidelines require the court, in sentencing an offender to a non-custodial sentence to take into account both aggravating and mitigating factors. The aggravating factors include use of a weapon to frighten or injure the victim, use of violence, the number of victims involved in the offence, the physical and psychological effect of the offence on the victim, whether the offence was committed by an individual or a gang, and the previous convictions of the offender. Among the mitigating factors are provocation, offer of restitution, the age of the offender, the level of harm or damage inflicted, the role played by the offender in the commission of the offence and whether the offender is remorseful.

7. This progressive decisional law now requires Courts to pay attention to individual aspects of the case while sentencing even for convictions under the Sexual Offences Act which have prescribed minimum sentences. Where there are compelling reasons to depart from the prescribed minimum, which is treated as indicative of the sentence to be imposed, the Court can impose a different sentence.

8. However, unlike the decision in Muruatetu and other cases where the death penalty was imposed, the decision Dismas Wafula Kilwake does not operate retroactively. This was a decision given the ordinary common law mode which does not entitle all other people who could have benefitted from the new development in decisional law to approach the High Court afresh for review of the sentences imposed. Instead, the principles announced in the case will apply to future cases. In other words, persons whose appeals have already been heard by the High Court are not entitled to file fresh applications for re-sentencing in accordance with the new decisional law. To reach a different conclusion would lead to an ungovernable situation where all previously sentenced prisoners would seek review of their sentences.

9. To reiterate, only prisoners who had been sentenced to death pursuant to mandatory provisions of the law are entitled to new sentence hearings. For all others, they are entitled to urge the new decisional law in their appeals in a bid to get lower sentences and no more. They cannot bring new applications for re-sentencing.

10. In the present case, the Applicant’s appeal has already been heard by the High Court. He cannot return to the High Court for a review of the sentence imposed. He is at liberty to make an argument for reduced sentence at the Court of Appeal.

11.

Consequently, I reach the conclusion that the Applicant cannot, in the circumstances of this case, benefit from the doctrine propounded in

Muruatetu Case

. I therefore dismiss his application for re-sentencing as unmeritorious.

12.

Orders accordingly.

Dated and delivered in Nakuru this 17

th

day of July, 2019

.........................

JOEL NGUGI

JUDGE