Gachingiri v Republic (Miscellaneous Criminal Application E080 of 2022) [2024] KEHC 2735 (KLR) (11 March 2024) (Ruling)
Neutral citation:
[2024] KEHC 2735 (KLR)
Republic of Kenya
Miscellaneous Criminal Application E080 of 2022
SM Mohochi, J
March 11, 2024
Between
Elijah Kamau Gachingiri
Applicant
and
Republic
Respondent
Ruling
1.This is an application by Elijah Kamau Gachingiri filed pursuant to Articles 2, 3(a), 19, (2) 20(1), 22(1), 22(1),23(1) 25(c) 26(1), 27(1)(4), 28, 50(2)(p)(q), 159(2) and 165(3) of the Constitution and Practice and Procedure Rules 2010, filed on the 7th July 2022, that invites the court to rehear his sentence and is grounded on the Applicant’s evenly dated sworn affidavit.
2.The Applicant was charged in Criminal Case Number 117 of 2007 in Chief Magistrate's Court at Nakuru with the offence of defilement contrary to Section 8(1) as read together with Section 8(2) of the Sexual Offenses Act and convicted on his “own plea of guilty” and sentenced to serve life imprisonment as a mandatory minimum sentence.
3.The Particulars of the offence was that;
4.Aggrieved with the conviction, Elijah Kamau Gachingiri preferred an Appeal in High Court at Nakuru HCRA No. 06 of 2020 that was dismissed for having been filed thirteen years (13) after judgment and that, the honourable court has got the discretion on sentencing following the decision In Dismas Wafula Kilweka Vs Republic petition number 15 and 16 of 2015 [2018] eKLR.
5.That the High Court of Kenya at Machakos in Peter Mueke Maingi & 5 Others Vs D.P.P and Attorney General in Constitutional Petition No. 17 of 2021 termed the mandatory minimum sentences in the Sexual Offences Act No. 3 of 2006 unconstitutional and ordered those sentenced under the minimum sentences to apply to the high court for sentence rehearing.
6.That, the court be pleased to find that, he was convicted as a first offender and has been in custody for the past sixteen (16) years.
7.That he is a young man whose life is greatly affected by the imprisonment, while in prison he has taken full advantage of the rehabilitate programmes offered in the correctional facility as is evident in the attached documents together with a prison report and thus humbly pray that his prayers be granted and the life imprisonment sentence be substituted with a lenient definite sentence as is provided for under Article 50 (2) (p) and (q) of the constitution and that the court further invokes the Provisions of Section 333(2) of the Criminal Procedure Code to have his sentence include the pre-trial remand period. He makes this application in regard to the above-mentioned articles in reliance of Article 165(3) (b) of the constitution which empowers this court to handle application of this nature.
Applicant’s Submissions
8.That due to the Provisions of the Constitution of Kenya 2010 under Articles 50(2)(p) and (g) and other provisions of the law, it has enabled the Applicant to file a re-sentencing application on mitigation only seeking leniency.
9.The Applicant contends that, mandatory minimum sentences are unconstitutional and they are a threat to the doctrine of separation of powers and the independence of the Judiciary. When the legislature has legal access to undertake and discharge judicial functions of the Judiciary, then there can be no more threat to the doctrine of separation of powers and the independence of the Judiciary than that. That can only be the height of the sequestration of the Judiciary. Courts have severally warned against such scenario, Justice J. B. Ojwang, a retired Judge of the Supreme Court of Kenya while articulating the principle of supremacy of the Judiciary in Civil Application No. 11 of 2016 Kalpana H, Rawal &, 2 others v Judicial Service Commission & 3 others [2016] eKLR as follows:
10.On the subject of separation of powers, the Court in Wilfred Manthi Musyoka Vs Machakos county Assembly & 4 others [2018] eKLR had the following to say:
11.That this principle is reflected in the Constitution at Article 1(3) which provides that sovereign power which pursuant to Article 1 (1) of the Constitution "belongs to the people of Kenya and shall be exercised only in accordance with this Constitution": ..., is delegated to the following State organs, which shalt perform their functions in accordance with this Constitution-(a)Parliament and the legislature assemblies in the county governments;(b)the national executive and the executive structures in the county governments; and(c)the Judiciary and independent tribunals.
12.It is thus appreciated by the High Court in ' Trusted Society of Human Rights v The AG and Others, High Court Petition No. 22 a of 2012: [2012] eKLR. at paragraphs 63-64 where it held as follows:
13.The broad principle of "separation of powers", certainly, incorporates the scheme of "checks and balances"; but the principle is not to be applied in theoretical purity for its ultimate object is good governance, which involves phases of co-operation and collaboration, in a proper case.
14.It is axiomatic that sentencing is an exclusively judicial function. This creates a potential constitutional argument against minimum mandatory sentencing regimes in jurisdictions that recognize the principle of a separation of powers between the legislature, executive, and judiciary. It can be argued that a legislature that mandates to the judiciary what the punishment must be for a person convicted of a particular crime infringes the separation of powers, because it purports in effect to exercise what is a judicial function, namely that of sentencing. Such regimes reduce the judge to the status of an officeholder applying a rubber stamp to a result pre-ordained by the legislature, once a finding of guilt has been made. This undermines a key plank of the constitutional structure, that of checks and balances between different arms of government.
15.A judiciary that is, in effect, directed as to what sentence to impose does not act as a check and balance on legislative overreach. Just as legislators cannot arrogate to themselves the function of determining an individual's guilt, so too they cannot arrogate to themselves the function of determining an individual's punishment. Acceptance of either proposition would obviate the need for courts. Both offend the principle of separation of powers. A court is not simply there to rubber-stamp a legislative or executive determination of guilt nor is it there to rubber-stamp a legislative or executive determination of punishment. Courts have a substantive, not decorative, role in the constitutional design.
16.In Liyanage v. The Queen [1967] A.C. 259, the Privy Council invalidated a Ceylonese Law providing for a minimum mandatory jail term of 10 years for particular offenders, because of the disproportionality in Sentencing that resulted. The court found the provision was invalid because it infringed the separation of powers principle enshrined in the Ceylonese Constitution. It did so by imposing a "legislative judgment": rather than the sentence being determined by the Judiciary, it was determined by the legislature. If such laws were permitted, judicial power could be "wholly absorbed by the legislature and taken out of the hands of judges." The separation of powers arguments against minimum mandatory provisions were also accepted and applied by the United Kingdom courts in Keyes V. The Queen [2002] 2 A.C. 235, 258 and in R (Anderson) v. Home Secretary [2003] 1 A.C. 837.
17.In jurisdictions like ours, whose Constitution provides expressly for a separation of powers between the judiciary and non-judicial arms of government, the Court can and should find that legislation mandating the imposition of particular penalties for proven particular activity, and requiring the court to rubber-stamp legislature approved outcomes created without regard to specific cases, is unconstitutional. Such laws potentially gravely undermine the separation of powers that the creators of many constitutions carefully enacted to avoid the arbitrary, capricious exercise of power. They require judges to exercise judicial power in a way that is not legitimate and that undermines the authority and integrity of a court. A judiciary that refuses to hold the line against such legislative incursions on the judicial role risks surrendering its fundamental role in the broad constitutional scheme.
18.That it is good to appreciate that even other jurisdictions appreciate the need of judges and convicting magistrates exercising their discretionary powers when it comes to sentencing other than just following the stipulated mandatory nature of sentences.
19.In S v Mchunu and Another (AR24N1) (2012) Zakzphc 56 Kwa Zulu High Court held that: -
20.That it is also evident that the court in other jurisdictions have always frowned on mandatory sentence that places a limitation on Judicial discretion. In, S v Toms 1990 (2) SA 802 (A) AT 806(L)-807(B) the South. African Court of Appeal (Corbett CJ) held that: - sentence that place a limitation:
21.In S v Mofokeng 1999(1) SACR 502 (w) AT 506 ( (a), the South African Court of Appeal held that:
22.Also, in S v Jansen 1999 (2) SACR 368 at 373 (g) – (h) Davis J. held that:
23.In the above cited case law, it was the courts view that the opinion of the Supreme Court with respect to mandatory sentence apply with equal force to minimum sentences. This view is supported by the Kenya judiciary sentencing policy guidelines where it is appreciated that: -
24.The Applicant urges the court not to remain blind to the fact that our jurisdiction has also appreciated the importance of judges and magistrates exercising their discretion on sentencing depending on the circumstances of the case and any internal and external factor that they may deem fit to consider while sentencing.
25.The Court of Appeal in Dismas Wafula Kilwake v Republic [2018] eKLR, the court set out the factors to be considered in sentencing under the Act. It observed as follows:
26.In the case of Evans Wanjala Wanyonyi, HCCR Appeal no 174 of 2015 and criminal appeal no. 312 of 2018 a case of defilement contrary to Section 8) as read with Section 8(3) of the Sexual Offences Act No. 3 of 2006, the Court of Appeal sitting at Eldoret (coram: Makhandia Kiage & Otieno-Odeck JJA) were guided by the merits of the court of Appeal decision in Christopher Ochieng v Republic (supra) and Jared Koita Injiri vs Repubic Kisumu Criminal Appeal No 93 of 2014 in relation to sentencing and thus held:
27.Further in Paul Ngei vs Republic (2019] eKLR, the Court of Appeal at Kisumu substituted the appellant's mandatory minimum sentence of twenty (20) years with one of twelve (12) years imprisonment and held that, at paragraph 13:
28.That, recently the High Court sitting at Narok in Sammy Wanderi Kugotha v Republic [2021] eKLR, substituted the appellant's mandatory minimum sentence of life imprisonment with one of twenty (20) years imprisonment and held that, at paragraph 13:
29.Reference is made to the case of Guyo Jarso Guyo vs Republic (2018) Petition No. 6 of 2018 where the high court of Kenya sitting at Marsabit substituted a life imprisonment term meted upon the appellant to a 20 years' imprisonment term and Paul Odhiambo Mbola v Republic [2020] eKLR where the court at Kisumu substituted a life sentence with a 10-year sentence which the applicant had served.
30.The Applicant submit that, he was convicted to serve Life Imprisonment for the offence of defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act No. 3 of 2006 and implores this court to find that the sentence imposed upon me was a statutory minimum mandatory sentence and that even my mitigations then could not have changed it since the trial judges' hands were then tied by the statutory provisions. I now humbly beg leave of this honorable court to use its discretionary powers following the Constitutional provisions under Article 50(2][Q] and the above cited laws and invoke the mandatory minimum sentence of life sentence and substitute it with a more lenient sentence.
31.Further reference is made to the Recent decision in Philip Mueke Maingi & 5 Others Vs Director of Public Prosecutions & the Attorney General the high court in Machakos did order that:
32.Further refence is made to the case of Ahamad Abolfathi Mohammed & another v Republic (2018) eKLR Pages 63 it was held that;
33.The Applicant urges that in the eventuality that the Court imposes a custodial sentence may consider the period spent in custody since the date of arrest as per Section 333(2) of the Criminal Procedure Code and the principles in the above cited cases.
34.The Applicant contends that, while in the correctional facility he has embraced fully the rehabilitative programs being offered and that it is also wise to appreciate that the essential rationale for sentencing is rehabilitation.
35.He urges the court to be guided by the Francis Karioko Muruatetu and Another vs. Republic (supra) para 7.1 part (9) it was acknowledged that "possibility of reform and re-adaptation of offenders". Under policy direction 4.1 of the sentencing guidelines policy 2015 core objective of the custodial sentence is reformation and rehabilitation.
36.The Applicant contends that he is fully rehabilitated having obtained Certificates in carpentry and joinery grades (i) and (ii) and ready to be productive in building our nation thus urging the court to find the same and conclude that the time he has already served is sufficient.
37.That the Applicant has made efforts to reconcile with the complainant who is my family member and now they are reconciled and do swear that he is and will be a law-abiding citizen. It is also his sincere prover that this court find that he was not married and would like to go and get married he thus humbly request for another chance in life since before being incarcerated he was yet to get married.
38.Based on the above mitigating factors the Applicant humbly implore this honorable court to pass a lenient sentence that will enable him re- unite with his family, community and the free world at large.
39.Finally, Applicant urges court to consider his submissions and find that this is the most appropriate time to have him offer his contribution to the society and participate in the nation building as a law-abiding citizen being armed with the skill to make him earn a living apart from serving the community.
40.The Applicant thus prays for his application to be allowed and the court be pleased to find that the period he has already served to be sufficient based on the rehabilitative programme's undertaken, the above cited case laws and the mitigating factors discussed above or Order that he serve the remaining period of sentence that this court may met out under probation or community service order.
Respondent’s Case
41.The Respondent did not oppose the application and urged the court to consider the aggravating circumstances that the victims was four (4) years old. She suffered a broken hymen at that tender age and suffers lifelong trauma and shall never fully recover and that the Applicant as a family member and uncle to the victim betrayed the trust to protect the child he violated as circumstances to impose an appropriate imprisonment term.
Analysis and Determination
42.The Power of High Court to call for records is provided for under Section 362 of the Criminal Procedure Code:
43.Section 364 of the Criminal Procedure Code provide for the Powers of High Court on revision as follows;
44.In the case of Prosecutor vs Stephen Lesinko [2018] eKLR Nyakundi J outlined the principles which will guide a court when examining the issues pertaining to Section 362 of the Criminal Procedure Code as follows: -a.Where the decision is grossly erroneous;b.Where there is no compliance with the provisions of the law;c.Where the finding of fact affecting the decision is not based on evidence or it is result of misreading or non-reading of evidence on record; andd.Where the material evidence on the parties is not considered;
45.The Supreme Court clarified that their decision in the Muruatetu case only related to the mandatory death sentence for murder cases under Section 203 and 204 of the Penal Code, and did not apply to any other statutory mandatory death sentences or minimum sentences.
46.Specifically, the Supreme Court issued the following guidelines:
47.This Court is guided by the finding in Manyeso v Republic (Criminal Appeal 12 of 2021) [2023] KECA 827 (KLR) (7 July 2023) (Judgment) where the Court of Appeal held that:
48.This Court in reviewing the sentence examined the court proceedings by Hon Matheka (SRM), for the 15th May 2007 as follows:
- Accused person convicted in his own “plea of guilty”.
- The prosecutor indicated that he did not have other previous records, praying that the accused be treated as 1st offender.
- Accused was asked whether he has any to state in mitigation? he says 'no'.
- Hon Matheka as she then considered, the terms of the case perused the P3 and the treatment notes. Noting 'minor's hymen broken'
- The P3 also indicate that the subject was defiled and Sustained injury.
- Accused person having nothing to say.
- Clearly this is grievous offence and the accused person is the kind of person who should be kept far away from little girls and far along him.
- ...... under section 8(3) of the sexual offence act the sentence provided therein is a sentence of Life imprisonment
- The provision of section 8 (2) are in mandatory terms of a person convicted of defilement for a child aged 11 years or less shall upon conviction be similar to imprisonment for life.
- I sentence the accused person to imprisonment for life.
- Right of appeal 14 days.
49.This Court’s evaluation of the Proceedings reveals that the Applicant was never accorded any leniency as a first-time offender and the court imposed the sentence in mandatory terms without exercising its discretion.
50.The exercise of discretion by the trial magistrate in sentencing was not judicious and that the Applicant was denied the benefit of a first-time offender with reason being the mandatory sentence.
51.The Court ought to have clearly recorded reason(s) why the Applicant was undeserving of any sympathy.
52.The Applicant has been in Prison custody for almost Seventeen (17) years a period which he has achieved remarkable qualifications and with good conduct as above, the Applicant will soon qualify under Section 46; (1) (Cap 90), the Prisons Act earn a remission of one-third of his sentence.
53.From the foregoing therefore, this court shall interfere with the sentence imposed by Hon Matheka(CM) as she then was, of Life Imprisonment, by setting it aside and substituting therewith a term imprisonment.
54.In the upshot this court finds this Application to be of merit and accordingly allow the same.i.The Sentence of Life Imprisonment imposed on the Applicant on the 15th May, 2007 is hereby set aside.ii.The Applicant shall serve a +iii.Twenty-Five (25) Years imprisonment sentence to run from the 13th May 2007.
55It is so Ordered.
SIGNED, DATED and DELIVERED IN OPEN COURT AT NAKURU ON THIS 11TH MARCH 2024________________________ MOHOCHI S.MJUDGE