Kimeu v Republic (Miscellaneous Criminal Application E124 of 2022)  KEHC 319 (KLR) (26 January 2023) (Ruling)
Neutral citation:  KEHC 319 (KLR)
Republic of Kenya
Miscellaneous Criminal Application E124 of 2022
A. Ong’injo, J
January 26, 2023
Matingo Kimeu alias Dan
1.The applicant herein was charged and convicted with the offence of defilement contrary to section 8 (1) as read with 8 (2) of the Sexual Offences Act No 3 of 2006 vide SO No 38 of 2016 at Mombasa by Hon E Kagoni where judgement was delivered on April 4, 2017 and the applicant was sentenced to serve life imprisonment.
2.The applicant then appealed against the conviction and sentence HCRA No 67 of 2017 where Hon Lady Justice A Ongeri dismissed the appeal and confirmed both conviction and sentence.
3.Through an application filed on June 20, 2022, the applicant urged the court to consider his mitigation in respect to articles 25 (c) and 50 of the Constitution as well as the decision of Odunga, J in the case of Philip Mueke Maingi and 5 others v Rep Const Pet No E017 of 2021 where the court dealt with the issue of mandatory minimum sentences.
4.The applicant prays for orders that this honourable court reviews his sentence in consideration of the mitigating factors, that this honourable court takes into account the period that he has been in custody both pre-conviction and post-conviction and any other order that the court deems fit to make.
5.The mitigating factors that the applicant laid out for consideration included reformed behavior in prison, that he is a first offender, that he is 43 years of age, and that he left behind a jobless wife with 5 children together with his mother who are now suffering due to his absence.
6.section 8 (2) of the Sexual Offences Act No 3 of 2006 provides: -
7.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: -
8.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.
9.The applicant was given an opportunity to mitigate and the trial court considered the mitigation and imposed life imprisonment for the offence of defilement. In consideration that a life sentence is infinite, the court has discretion to consider mitigating circumstances of the accused and the prisons are also certain how long they are going to hold an accused person. Determinate sentences meet the objectives of sentencing policy guidelines because of their certainty.
10.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
11.In consideration of the above, this court finds that the application has merit and is allowed. The applicant’s life sentence is reviewed to 25 years imprisonment.
12.On when the sentence should start running, section 333 (2) of the Criminal Procedure Code provides as follows: -
13.Further to the above section, the court in Bethwel Wilson Kibor v Republic  eKLR held as follows: -
14.The Judiciary Sentencing Policy Guidelines also state as follows: -
15.In conclusion, this court finds that in consideration of the application for review and in consideration of section 333 (2) of the CPC, 25-year imprisonment is to run from April 14, 2016 when the accused was first arraigned in court. The time already served in custody is to be deducted from the said sentence. Orders accordingly.
DATED, SIGNED AND DELIVERED IN OPEN COURT/ONLINE THROUGH MS TEAMS, THIS 26TH DAY OF JANUARY 2023HON. LADY JUSTICE A. ONG’INJOJUDGE In the presence of: -Ogwel- Court AssistantMr. Ngiri for the Respondentapplicant present in person