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Kibet v Republic (Criminal Application E014 of 2022) [2023] KEHC 4153 (KLR) (28 April 2023) (Ruling)
Neutral citation:
[2023] KEHC 4153 (KLR)
Republic of Kenya
Criminal Application E014 of 2022
RL Korir, J
April 28, 2023
Between
Samuel Rotich Kibet
Applicant
and
Republic
Respondent
Ruling
1.The applicant filed a miscellaneous application for the revision of the sentence on March 2, 2023 asking the court to give consideration to mitigating circumstances being: the age of the offender, remorsefulness, rehabilitation, possibility of reform or reintegration and any other factors that the court may deem fit.
2.The applicant, Samuel Rotich Kibet was charged with the offence of defilement contrary to section 8 (1) of the Sexual Offences Act. He also faced an alternative charge of committing an indecent act with a child contrary to section 11 (1) of the Sexual Offences Act.
3.In the judgment dated December 29, 2016, the trial court found the accused guilty of the offence of defilement and convicted him. The trial court thereafter sentenced the accused to 15 years in prison.
4.The application was canvassed through oral and written submissions on March 6, 2023.
5.The applicant filed his submissions on March 2, 2023. He submitted that he was 54 years old, an age he considered to be a prime for nation building and that he wanted to be given a second chance in life by the sentence being reduced or reviewed. He further submitted that he was remorseful, had reformed and was now a born-again christian with good moral values. That he attended guidance and counselling sessions during his incarceration and that he could use the skills he had acquired in prison for nation building.
6.It was the applicant’s written submission that he was the sole breadwinner of his family and that his five children needed school fees as they risked dropping out of school. He also submitted that he was sickly, that his health was deteriorating and that he had never had any issues of indiscipline in prison.
7.It was the applicant’s further submission that the resentencing guidelines issued by Chief Justice Emeritus Willy Mutunga gave the judicial officers discretion in issuing sentences and that sentences ought to promote restorative justice and value rehabilitation. The applicant relied on Philip Mueke Maingi and 5 others v Republic (2021) eKLR on the issue of mandatory minimum sentences in sexual offences.
8.At the hearing of the application, the applicant further made oral submissions that the victim was the daughter of someone with whom he had a dispute and that he wanted to assist his children who were suffering.
9.Mr Njeru, learned prosecution counsel opposed the application for revision stating that the defilement was aggravated as the applicant defiled the victim four times and threatened to kill her and that he also made the victim pregnant. He further submitted that there was a huge age difference between the victim and the applicant. It was their submission that the court ought to rein in such behaviour as the offence was now rampant.
10.In a rejoinder, the applicant stated that he did not contest the decision of the courts in convicting him but merely sought a reduction in the sentence.
11.Having considered the application, the record from the trial court, and the opposing arguments of the parties, it is upon this court to determine whether the application is merited and whether the sentence ought to be revised.
12.Article 50 of the Constitution of Kenya provides for the rights of an accused person and the right to a fair hearing as follows: -(2)2) Every accused person has the right to a fair trial which includes the right to :-(q)if convicted, to appeal to, or apply for review by, a higher court as prescribed by law.
13.For this revision, the powers of this court are provided for under section 364 (1) (a) of the Criminal Procedure Code which provides: -
14.It is clear from the above that the court should not arbitrarily interfere with the sentence meted out by other courts of law unless it is satisfied that such a decision fell short of any of the following parameters being correctness, legality and propriety. The issue in this application is therefore whether the trial court acted upon wrong principles or overlooked some material factors or took into account irrelevant factors or if the sentence was inordinately excessive or lenient as to be an error of principle.
15.The Court of Appeal in the case of Ogolla s/o Owuor v Republic, (1954) EACA 270, stated as follows: -
16.Section 8 (4) of the Sexual Offences Act with which the applicant was charged and convicted provides that: -
17.It is evident from the above provisions that the Sexual Offences Act provides for a mandatory minimum sentence for a person who is found guilty of the offence of defilement.
18.There has been a robust discourse on the issue of the legality or the illegality of mandatory minimum sentences. The same was clarified by the Supreme Court in the case of Muruatetu & another v Republic; Katiba Institute & 4 others (Amicus Curiae) (Petition 15 & 16 of 2015) (2021) KESC 31 (KLR) (6 July 2021) (Directions) by stating that:-
19.Guided by the above precedent, the sentence as prescribed by law was legal. It is however salient to note that the minimum nature of the sentence did not prevent the trial or appellate court from considering the mitigation and the circumstances of the case to inform a harsher or lenient sentence if the circumstances of the offence warranted. I associate myself with the sentiments of Odunga J (as he then was) in Maingi & 5 others v Director of Public Prosecutions & another (Petition E017 of 2021) [2022] KEHC 13118 (KLR) when he stated thus: -
20.The objectives of sentencing as set out in the Judiciary Sentencing Guidelines 2016 are retribution, deterrence, rehabilitation, restorative justice, community protection and denunciation. In Thomas Mwambu Wenyi v Republic (2017) eKLR, the Court of Appeal held that:-
21.I have considered the trial court record and noted the mitigation offered by the applicant. It appears from the proceedings that there was an on-going sexual relationship between the appellant and the complainant and which had gone for approximately two years before any action was taken either by the complainant herself or her parents. What makes the relationship unpalatable however was the huge age difference between the appellant and the complainant and this fact was taken into account by the trial court.
22.I have considered the unique circumstances of the case. I have also considered that the appellant has served a substantial part of his sentence and has on this application demonstrated that he has since reformed.
23.In the final analysis, I reduce his sentence to 10 years imprisonment from the date of his first sentence.
24.Orders accordingly.
RULING DELIVERED, DATED AND SIGNED AT BOMET THIS 28TH DAY OF APRIL, 2022............................R. LAGAT-KORIRJUDGERuling delivered in the presence of the Applicant, (Virtually) present at Kericho Prison Mr. Njeru for the State and Siele (Court Assistant).
