Courts should consider the time accused spent in custody in sentencing

Brief facts

The appellant was charged, convicted of the offence of attempted defilement contrary to section 9(1) as read with section 9(2) of the Sexual Offences Act. The appellant was sentenced to serve 10 years imprisonment. Aggrieved the appellant appealed and contended that the trial court erred in law by not taking into consideration the time the accused spent in custody during the trial in his sentencing and by not considering the judiciarys sentencing guidelines. 

Issues

1. Whether courts were duty bound to consider the time spent by an accused person in custody while meting out the accused's sentence.
2. Whether the Supreme Courts decision in Francis Karioko Muruatetu & another v Republic [2017] eKLR proclaimed a foreclosure on any impeachment of, inter alia, sections of the Sexual Offences Act which provided for mandatory minimum sentences.
3. Whether the wording of the sentencing provision of the charge of attempted defilement (section 9(2) of the Sexual Offences Act)  that provided that such a person was liable upon conviction to imprisonment for a term of not less than ten years as worded provided for a mandatory minimum sentence.

Relevant provisions of the law

Sexual Offences Act (Act No 3 of 2006) section 9(1) and(2)

9.         Attempted defilement

1. A person who attempts to commit an act which would cause penetration with a child is guilty of an offence termed attempted defilement.
2. A person who commits an offence of attempted defilement with a child is liable upon conviction to imprisonment for a term of not less than ten years.

Held

1. A first appellate court had the duty to re-evaluate the evidence and make its own conclusions, except bearing in mind that the trial court had the advantage of hearing and observing the demeanor of the witnesses.
2. With the decisional law in Francis Karioko Muruatetu & another v Republic [2017] eKLR (Muruatetu I), and the subsequent guidelines Muruatetu & another v Republic; Katiba Institute & 4 others (Amicus Curiae) (Petition 15 & 16 of 2015) [2021] KESC 31 (KLR) (6 July 2021) (Directions) (Muruatetu II), which were meant to clarify Muruatetu I, came a greater risk of diverging interpretations of the guidelines and the application of the Muruatetu decisional law by courts on re-sentencing which brought about fragmentation issues as a consequence of the move towards application of precedent.
3. Whereas the Supreme Court restricted the application of the decision to cases under section 204 of the Penal Code, when similar arguments were made in respect of mandatory sentences in other law, the result had been that a law that denied court discretion in sentencing was unconstitutional - a principle of law that was enunciated in Muruatetu case.
4. There was apparent misinterpretation of Muruatetu I, and the application of the guidelines in Muruatetu II, in that, some courts and legal practitioners had taken the view that it proclaimed a foreclosure on any impeachment of, inter alia, sections of the Sexual Offences Act which provided for mandatory minimum sentences.
5. A court had discretion in sentencing. Sentencing was part of due process and fair trial. To the extent that a provision of law took away the discretion of the court in sentencing, it offended the tenets of fair trial, and therefore, unconstitutional. Mandatory sentences for that purpose included mandatory minimum sentences, for they deprived the court of discretion in sentencing, and such provision should be read down to provide discretion. The interpretation tool or technique of read-in or read-down was no longer strange or foreign in Kenyas  legal system due to clause 7 of transitional provisions of the sixth schedule to the Constitution.
6. It would be tidier if legislative intervention provided minimum sentences as opposed to mandatory minimum sentences with discretion to the court to impose appropriate sentence in light of circumstances of the individual case. The court could impose less or more than or the minimum sentence prescribed. In jurisdictions where legislative sentencing scheme was constitutionally justified had adopted presumptive or prescriptive minimum; not mandatory minimum sentences.
7. Sections 137 I(2)(a) and  333(2) of the Criminal Procedure Code required that a sentence shall take account of the period spent in custody. Courts had to give real effect to the section in sentencing. Merely stating that you had taken account of time spent in custody was not sufficient if the sentence, in light of the overall circumstances of the case, did not show that the period spent in custody prior to sentencing had been taken account of.
8. Failure to take account of time spent in custody as provided in the proviso to section 333(2) of the Criminal Procedure Code opened the accused to a real risk of serving a more severe sentence than was lawfully prescribed or proportional to the offence. A convicted person who so suffered could file an action for redress of a denial, violation, or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights under article 23(1) and 165(3)(b) of the Constitution.
9. The trial court imposed a sentence of 10 years imprisonment because it was minimum mandatory sentence. It did not exercise discretion. Such failure to exercise discretion on the basis that the law prescribed for mandatory sentence had real potentiality of prejudice to the accused.
10. It was debatable whether the terms used in the penalty clause, "was liable upon conviction to imprisonment for a term of not less than ten years meant mandatory minimum sentence. The only provision in Sexual Offences Act where the term shall was used was section 8(2).
11. There was nothing that showed that the trial court took account of the time spent in custody in passing the sentence of 10 years imprisonment. The appellant did not have the advantage of section 333(2) of the Criminal Procedure Code. The sentence was excessive; the appellant was entitled to redress. The fact that the appellant was a young man and first offender, the sentence was reduced to 8 years imprisonment to run from when he was first arraigned before the trial court, that was June 5, 2017.