Lawrence v Republic (Miscellaneous Criminal Application E109 of 2022)  KEHC 16711 (KLR) (1 December 2022) (Ruling)
Neutral citation:  KEHC 16711 (KLR)
Republic of Kenya
Miscellaneous Criminal Application E109 of 2022
A. Ong’injo, J
December 1, 2022
Mbuvi Kabwere Lawrence
1.The applicant Mbuvi Kabwere Lawrence was charged in Malindi Chief Magistrate’s Court Sexual Offence Case No 54 of 2010 with the offence of defilement contrary to section 8 (1) as read with section 8 (2) of the Sexual Offences Act No 3 of 2006. He was convicted and sentenced to life imprisonment.
2.He preferred an appeal to the High Court in Criminal Appeal No 95 of 2011 where the High Court upheld the conviction and sentence. The second appeal to Kenya Court of Appeal No 48 of 2017 also upheld the conviction and sentence.
3.The applicant now seeks to be considered for resentencing pursuant to the decision of Gikonyo, J in Misc Cr Application No E014 of 2021 High Court at Narok Baragoi Rotiken v Republic where life sentence was substituted with 25 years imprisonment. He also relied on provisions of section 35 of the CPC.
4.This court has perused the copy of proceedings and judgment in the trial court and established the applicant was never released on bond. He did not secure surety of Kshs 100,000 and remained in custody throughout his trial from December 6, 2010 to September 1, 2011 when he was convicted and sentenced. This court also considered the persuasive decisions in Machakos petition of Phillip Mueke and Others v Republic and Mombasa Petition which dealt with mandatory minimum and maximum sentences in the Sexual Offences Act and made them unconstitutional.
5.Justice Odunga in Petition No E017 of 2021, Phillip Mueke Maingi & 5 Others v DPP & AG while following the principles set in Francis Karioko Muruatetu & Another v DPP & AG had this to say in regard to minimum and maximum sentences in sexual offence: -
6.In consideration of the above authority and the holding by Gikonyo, J in Miscellaneous Criminal Application No E014 of 2021 Narok High Court in Baragoi Rotiken v Republic, this court finds that the mandatory life sentence deprives the trial court of the discretion in sentencing.
7.In Baragoi Rotiken v Republic (2022) eKLR it was held that severe sentence such as life imprisonment is applied in appropriate circumstances and in accordance with the Constitution or other laws on sentencing. Further, the position on determinate sentence was held by Hon Lady Justice Njoki Mwangi in Musinda Mahupa v Republic (2020) eKLR where life imprisonment sentence was substituted with a determinate sentence
8.On when the sentence should start running, section 333 (2) of the Criminal Procedure Code provides as follows: -
9.Further to the above section, the court in Bethwel Wilson Kibor vs Republic  eKLR held as follows: -
10.The Judiciary Sentencing Policy Guidelines also state as follows: -
11.In conclusion, this court finds that in consideration of the emerging trends in jurisprudence, in order for sentencing or punishment to be effective, it ought to be determinate. In the circumstances and in consideration of the applicant’s mitigation, this court substitutes life sentence with 30 years jail term with effect from December 6, 2010.
DATED, SIGNED AND DELIVERED IN OPEN COURT/ONLINE THROUGH MS TEAMS,THIS 1ST DAY OF DECEMBER, 2022.HON. LADY JUSTICE A ONG’INJOJUDGEIn the presence of: -Ogwel- Court AssistantMs Kambaga for RespondentApplicant present in person