Case ID:159102

Philip Chacha v Director of Public Prosecutions [2020] eKLR

Case Metadata

Case Number:

Constitutional Criminal Petition 35 of 2019

Parties:

Philip Chacha alias Paul v Director of Public Prosecutions

Date Delivered:

22 May 2020

Case Class:

Criminal

Court:

High Court at Migori

Case Action:

Judgment

Judge(s):

Antony Charo Mrima

Citation:

Philip Chacha v Director of Public Prosecutions [2020] eKLR

Advocates:

Mr. Kimanthi, Senior Principal Prosecution Counsel instructed by the Office of the Director of Public Prosecutions for the State.

Court Division:

Criminal

County:

Migori

Advocates:

Mr. Kimanthi, Senior Principal Prosecution Counsel instructed by the Office of the Director of Public Prosecutions for the State.

History Advocates:

One party or some parties represented

Case Outcome:

Petition allowed

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

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MIGORI

[Coram: A. C. Mrima, J.]

CONST. CRIMINAL PETITION NO. 35 OF 2019

PHILIP CHACHA

alias

PAUL................................PETITIONER

-VERSUS-

DIRECTOR OF PUBLIC PROSECUTIONS......

RESPONDENT

JUDGMENT

1. The Petitioner herein,

Philip Chacha alias Paul,

has once again attempted to secure his freedom. This is the second attempt. The first attempt was

vide

Criminal Appeal No. 23

of

2016

. The appeal was dismissed on 22/11/2016. The Petitioner did not appeal against the dismissal.

2. On 28/11/2019 the Petitioner filed a Petition before this Court. The Petition was very brief. It contended that the sentence handed to the Petitioner was unconstitutional as it contravened the legal principles in

Francis Muruatetu& Another -vs- Republic (2017) eKLR.

The Petitioner further contended that he was serving an unlawful sentence an act which this Court should not countenance. He prayed for re-sentencing.

3. The brief background to the Petition is that the Petitioner was charged in

Kehancha Principal Magistarte’s Court Criminal Case No. 38 of 2014

with the offence of

defilement

contrary to

Section 8(1)

as read with

Section 8(3)

of the

Sexual Offences Act No. 3 of 2006

. He also faced an alternative charge of

indecent act with a child

contrary to

Section 11(1)

of the

Sexual Offences Act

. He denied both offences and was tried.

4. He was eventually found guilty, convicted and sentenced to 20 years’ imprisonment. That was on 20/04/2016. His appeal to this Court was unsucessful.

5. As the Petition is centred on the sentence rendered by the trial court, I will reproduce the sentencing proceedings before the trial court. The court stated as follows: -

I have considered the nature and circumstances of the offence plus the accused’s mitigation. It is quite clear that the accused acted in a very intentional way towards a helpless minor. The provisions of Section 8(3) Sexual Offences Act are also quite clear and mandatory. I hereby sentence the accused in the main county to twenty (20) years imprisonment.

6. The sentence was upheld on appeal. The appellate Court also echoed the mandatory nature of the minimum sentence under

Section 8(3)

of the

Sexual Offences Act.

7. That is the basis of the Petition. The prosecution vehemently opposed the Petition. It contended that the decision in

Francis Muruatetu& Another -vs- Republic

case (supra) did not apply to sexual offences under the

Sexual Offences Act.

Consequently, adismissal of the Petitionwas called for.

8. I have previously dealt with the issue raised in this Petiton. In

Migori High Court Criminal Appeal No. 58 of 2018 Morris Odero Nyangoko versus Republic

(unreported) I stated as follows: -

25. ……..The Sexual Offences Act No. 3 of 2006 is a pre-2010 statute and introduced a raft of mandatory, sole and/or minimum sentences in sexual offences. It is therefore one of those statutes which must be applied in light of the Constitution which was promulgated in 2010. The issue of mandatory and sole nature of sentences was well settled by the Supreme Court in the much celebrated case of

Francis Muruatetu & Another -vs- Republic 2017 eKLR

where the Court stated in part thus: -

…….On our own assessment of the issue at hand and the material placed before us, we are persuaded, and now so hold, that section 204 of the Penal Code which provides for a mandatory death sentence is antithetical to the Constitutional provisions on protection against inhuman or degrading punishment or treatment and fair trial. We note that while the Constitution itself recognizes the death penalty as being lawful, it does not say anywhere that when a conviction for murder is recorded, only the death sentence shall be imposed.

We declare Section 204 shall, to the extent it provides that the death penalty is the only sentence in respect of the crime of murder is inconsistent with the letter and spirit of the Constitution

, which as we have said, makes no such mandatory provision.

………..Section 204 of the Penal Code deprives the Court of the use of judicial discretion in a matter of life and death. Such law can only be regarded as harsh, unjust and unfair.

The mandatory nature deprives the Courts of their legitimate jurisdiction to exercise discretion not to impose the death sentence in appropriate cases. Where a court listens to mitigating circumstances but has, nonetheless, to impose a set sentence, the sentence imposed fails to conform to the tenets of fair trial that accrue to accused persons under Articles 25 of the Constitution

; an absolute right.” (emphasis added).

26. Applying the foregone reasoning, the Court of Appeal in

Kisumu Criminal Appeal No. 93 of 2014 Jared Koita Injiri v Republic [2019] eKLR

while considering an appeal against life sentence imposed under Section 8(2) of the Sexual Offences Act had the following to say: -

…..In this case the appellant was sentenced to life imprisonment on the basis of the mandatory sentence stipulated by section 8(2) of the Sexual Offences Act, and if the reasoning in the Supreme Court case was applied to this provision, it too should be considered unconstitutional on the same basis. The appellant was provided an opportunity to mitigate in the trial court where it was stated that he was a first offender. He pleaded for leniency. However, it cannot be overlooked that the appellant committed a heinous crime, and occasioned severe trauma and suffering to a young girl. His actions have demonstrated that around him, young and vulnerable children, like the complainant could be in jeopardy.

Needless to say, pursuant to the Supreme Court decision in

Francis Karioko Muruatetu & Another vs Republic

(supra), we would set aside the sentence for life imposed and substitute it therefore with a sentence of 30 years from the date of sentence by the trial court.

27. Section 8(1) and (2) of the Sexual Offences Act states as follows:

8(1). ……..

(2) ……..

28. It therefore goes without say that the mandatory life sentence imposed by Section 8(2) of the Sexual Offences Act cannot stand. However, that is not to say that a court cannot render a life sentence upon convicting an accused person where the victim is of the age of 11 years old and below. A court must always reserve its discretion to consider the circumstances of each case independently and set an appropriate sentence. What the Constitution contemplates is that the sentence of life imprisonment cannot be the only sentence as currently proclaimed by Section 8(2) of the Sexual Offences Act. A court has discretion to render a life sentence as one of the lawful sentences upon consideration of mitigations and properly directing its legal mind on the factors for consideration in sentencing. The appeal on sentence is hereby allowed for the reason that the trial court stated that it had no discretion in sentencing in view of the mandatory nature of Section 8(2) of the Sexual Offences Act. The life sentence is hence set-asid

e.

9. It is on the foregone that the Petition must succeed. As a result the following final orders do hereby issue: -

(a) The Petition filed on 20/11/2019 be and is allowed and the sentence of 20 years’ imprisonment rendered in

Kehancha Principal Magistarte’s Court Criminal Case No. 38 of 2014

on 20/04/2016 be and is hereby set-aside.

(b)The Petitioner shall be presented before the trial court for purposes of re-sentencing.

Orders accordingly.

DELIVERED, DATED

and

SIGNED at MIGORI this 22

nd

day of May, 2020.

A. C. MRIMA

JUDGE

Judgment delivered in open Court and in the presence of:

Philip Chacha

alias

Paul

,

the Petitioner in person.

Mr. Kimanthi

, Senior Principal Prosecution Counsel instructed by the Office of the Director of Public Prosecutions for the State.

EvelyneNyauke –

Court Assistant