1.The Petitioner herein is Maurice Juma Ochuo. He was convicted of the offence of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act vide Ukwala PM’s Court SO 10/2019 and sentenced to serve 15 years imprisonment which was below the mandatory minimum sentence stipulated in Section 8(3) of the Sexual Offences Act. This was on 1.8.2019.
2.Aggrieved by that conviction and sentence, he appealed to this court vide Siaya HCRA No. 60/2019 which appeal was heard and determined vide judgment delivered on 16/11/2021.
3.There is no indication that he has appealed to the Court of Appeal.
4.He is now before this court petitioning for resentencing claiming that he was sentenced to an unconstitutional sentence and wants the court to reduce that sentence. He also seeks orders that this court should consider Section 333(2) of the Criminal Procedure Code on the period spent in custody prior to his being sentenced.
5.I have considered the petition filed on 21/7/2022 and the supporting affidavit.
6.I have perused the High Court CRA No. 60 of 2019.
7.In that appeal, I observe that the prosecution had filed a Notice of enhancement of sentence imposed on the appellant on the ground that the trial court imposed a lesser sentence than the mandatory 20 years imprisonment stipulated in Section 8(3) of the Sexual Offences Act, as the child who was defiled was aged 13 years old.
8.However, in my judgment delivered on 16/11/2021 at page 40, I declined to enhance sentence imposed on the appellant/petitioner herein on account that the Supreme Court’s Francis Muruatetu II directions of 6/7/2021 were issued by the Supreme Court after the appellant had already been sentenced to a lesser prison term than the mandatory sentence under section 8(3) of the Sexual Offences Act hence the directions could not operate retrospectively to the prejudice of the appellant. I found that the trial magistrate exercised discretion in sentencing the appellant applying the Muruatetu I v Republic eKLR case principles which had been widely applied even by the Court of Appeal and which this Court as a High Court followed religiously through the doctrine of precedence, with the consequence that mandatory minimum sentences had been found to be unconstitutional to the extent that they deprived the trial court of discretion in sentencing having regard to the mitigations and circumstances of each case and denied the convict an opportunity to mitigate.
9.Therefore, having found that in this case the Petitioner’s sentence was not the mandatory minimum, and which discretionary sentence this court upheld on appeal, I find this petition to be mischievous and an abuse of court process.
10.On the other hand, I have perused the trial court and appellate records and I observe that the trial court record shows that the petitioner herein was first taken to court on 25/4/2019 for Plea and on 8/5/2019, he was released on surety bond of Kshs. 250,000/= granted by the trial court.
11.The charge sheet dated 25/4/2019 shows that he was arrested on 23/4/2019 and presented to court on 25/4/2019 meaning he was in custody for 2 days prior to being presented to court and upon taking plea on 25/4/2019, he was released on bond when his surety was approved 14 days later.
12.For that reason, I would calculate the days that the Petitioner spent in custody to be 10 days and order as follows:
13.I so order.