1.Petitioner was on July 1, 2011 convicted for the offence of defilement contrary to section 8(1) as read with section 8 (2) of the Sexual Offences Act and was sentenced to life imprisonment.
2.Petitioner’s appeal Meru CR Appeal No 111 of 2011 was dismissed on November 28, 2013 and he did not appeal to the Court of Appeal.
3.Petitioner seeks resentence on the ground that he was sentenced to a mandatory sentence.
4.Ms Rita for the DPP opposed the application on the ground that the offence involved a 3 ½ year old that had to undergo constructive surgery as a result of the injuries inflicted on her by the Petitioner.
6.Whereas Philip Mueke Maingi v Republic  eKLR and Edwin Wachira & 12 Others Petition Nos 57, 88, 90 and 97 of 2021 dealt with resentence of persons charged with sexual offences, this case is peculiar for the brutal manner in which Petitioner attacked an innocent defenceless 3 ½ year old leaving her with lifelong injuries both physical and psychological.
7.In the South African case of S v Mchunu and Another (AR24/11)  ZAKZPHC 6, Kwa Zulu Natal High Court held that sentencing vests a discretion in the trial court to consider what a fair and appropriate sentence should be.
8.Another South African case of S v Scott-Crossley 2008 (1) SACR 223 (SCA) at para 35 set out the purpose behind a sentence as follows:‘Plainly any sentence imposed must have deterrent and retributive force. But of course one must not sacrifice an accused person on the altar of deterrence. Whilst deterrence and retribution are legitimate elements of punishments, they are not the only ones, or for that matter, even the over-riding ones. . . [i]t is true that it is in the interests of justice that crime should be punished. However, punishment that is excessive serves neither the interests of justice nor those of society.”
10.Flowing from the foregoing, I find that it would not serve any meaningful purpose to confine Petitioner to a life of hopelessness. I am therefore persuaded to resentence Petitioner to a determinate sentence.
11.In resentencing the Petitioner, I have taken into account the provisions of Section 333(2) of the Criminal Procedure Code and the fact that he might have spent some time in custody from the date of his arrest to the date of conviction and it is not expected that Petitioner will seek any further concession from the court.
12.In the end, Petitioner is thus resentenced to serve 30 years from the date of his conviction on July 1, 2011.
13.It is hoped that Petitioner will undertake some form of training as a way of reformation so that he can easily integrate with the community once released.