1.What is before this court is a notice of motion application dated August 14, 2022 wherein the applicant is seeking for orders of re sentencing. He had been charged before Mavoko chief magistrate court with the offence of defilement a child aged 6 years contrary to provisions of section 8(1) and 8(2) of the Sexual Offences Act and in the alternative, he was charged with the offence of indecent Act with a child contrary to section 11(1) of the Sexual Offences Act. He was found guilty on the main count of defilement and was convicted and sentenced to serve a term of 21 years imprisonment on July 2, 2019. He appealed to the high court and his conviction was reduced from defilement to indecent assault and re - sentenced to serve eight (8) years imprisonment.
2.The applicant in his brief application sought re sentencing based on Article 28, 50(2)(p) and sections 216 & 329 of the Criminal Procedure Code and petition no Philip Mueke & others Vs Odpp & Attorney General & Criminal Appeal 312 of 2018 Evans wanyonyi Vs Republic amongst .He also stated that the high court had jurisdiction in accordance to Article 165 of the Constitution to hear and determine this application and exercise its discretion and look at the sentence melted out.
3.The applicant further filed written submissions on March 9, 2023 where he reiterated the contents of his pleadings. He stated that he was remorseful and had been in custody for three (3) years and 3 months during which period he had been able to appreciate the consequences of his action and vowed never to repeat such wayward misconduct again. The appellant also stated that he had undertaken various trainings and spiritual courses.
4.On sentencing he submitted that the court ought to consider the judiciary sentencing policy and use it to apply a lesser lenient sentence guided by the new jurisprudence relating to mandatory minimum sentencing in sexual offences. The prison was over crowded and the court had powers under section 362 – 367 of the CPC to decongest the prison by reducing sentences of deserving inmates.
5.The respondent did file their submissions on July 9, 2023 and submitted that the applicant exercised his right of appeal and on appeal his sentence was reduced from 21 years to 8 years imprisonment. The respondent had served four (4) years imprisonment and if he were to benefit from remission which takes into consideration one third of the term then he was remaining with just one year to serve.
6.The respondent conceded that the applicant could be considered for sentence review and if appropriate be considered for probation to enable him reconstruct his life.
Analysis And Determination
Nature and scope of resentencing
7.Re-sentencing is neither a hearing de novo nor an appeal. It is a proceeding undertaken within the court’s power to review sentence. The court will ordinarily check the legality or propriety or appropriateness of the sentence. The relevant considerations in the proceeding inter alia, are the penalty law, mitigating or aggravating factors, and the objective of punishments. In re-sentencing proceedings, conviction is not in issue.
8.It bears repeating that, the High Court has the mandate under Article 165 (3) of the Constitution to hear and determine matters on enforcement of rights and fundamental freedoms enshrined in the Constitution. A further leapfrog development; under article 50(2)(p) of the Constitution: 50(2) Every accused person has the right to a fair trial, which includes the right—(p)To the benefit of the least severe of the prescribed punishments for an offence, if the prescribed punishment for the offence has been changed between the time that the offence was committed and the time of sentencing
12.In light thereof, nothing prevents the court from applying the decisional law and ordering sentence review in cases where the penalty imposed can be challenged on valid legal grounds. To me, denying an accused the benefit of court’s discretion to impose appropriate sentence is inconsistent with the right to fair trial. Fair trial includes sentencing. On that basis this court has jurisdiction to determine review of sentence.
13.I have perused the decision by this court, the applicant was sentenced to serve twenty-one (21 years) for defiling a girl aged 6 years, who was his step daughter. The appellant appealed as against this sentence and the conviction and sentence were set aside and the appellant convicted of the lesser charge of indecent assault and sentence to eight (8) years imprisonment.
14.Sentencing is a discretion of the trial court. But the court should look at the facts and the circumstances of the case in its entirely so as to arrive at appropriate sentence. The Court of Appeal in Thomas Mwambu Wenyi Vs Republic (2017) eKLR cited the decision of the Supreme Court of India in Alister Anthony Pereira Vs State of Mahareshtra at paragraph 70-71 where the court held the following on sentencing:
15.In the circumstances of this case, I do find that the applicant was properly convicted and sentenced by the trial court and on appeal the same was reduced from twenty-one (21) years to eight (8) years.
16.While the respondent did partially concede to this application and stated that the appellant could benefit from a revision, having considered all the facts herein and given the reduced sentenced given on appeal, I do hold that this is not a proper and just case where the court’s jurisdiction can be exercised in favour of the appellant
17.The appellant did commit and indecent act with his step daughter who was six (6) years. The victim impact statement clearly indicated that the minor suffered psychological trauma, physical injuries which affected her academic performance and social relationship’s. On appeal the applicant’s sentence was reduced to eight (8) years, while the maximum penalty for indecent assault under provisions of section 11(1) of the Sexual Offences Act is not less than ten (10) years. Despite this being the position, the learned judge did sentence the appellant to 8 years, which shows that the trial judge did consider the current jurisprudence on minimum sentence.
18.In re sentencing the court discretion is not based on sympathy, there must be an express right which was violated or which was for one reason or the other not considered, the basis upon which courts discretion can be based. In the instance case this was not shown to be the position and the applicant had already benefited from a lesser sentence.
19.I do therefore find that this application is not merited and the same is dismissed.
20.It is so ordered.