The requirement of parties to a marriage to file for annulment of the marriage within a year under section 73(2) of the Marriage Act infringed on the right to access to justice.
Headnote: The question whether the marriage was void or voidable was for courts to consider within the provisions of article 50(1) of the Constitution. The bar of one year was a characteristic defect. It was plausible that a court seized of jurisdiction over the cause of action (annulment) should not be limited to remedy the voidable marriage.

S B M & another v Attorney General (Constitutional Petition 21 of 2021) [2022] KEHC 13920 (KLR) (19 October 2022) (Judgment)
Neutral Citation: [2022] KEHC 13920 (KLR)
High Court at Eldoret
RN Nyakundi, J
October 19, 2022
Reported by John Ribia
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Constitutional Law – fundamental rights and freedoms - right to equality and freedom from discrimination – right to conscience and thought – right to free consent to marry and stay in a marriage - whether section 73(2) of the Marriage Act that provided that a court could only grant a decree of annulment if the petition was made within one year of the celebration of the marriage violated the rights to equality and non-discrimination, conscience and thought, free consent to and within marriage of a party to a marriage which met the conditions for annulment but was filed a year after the marriage - whether section 8(2) of the Marriage Act that provided that a polygamous marriage would not be converted to a monogamous marriage unless at the time of the conversion the husband had only one wife was discriminatory – Constitution of Kenya, 2010 articles 27, 32, 45 and 48; Marriage Act (Act No. 4 of 2014) sections 8(2), 73(2)
Constitutional Law – fundamental rights and freedoms – right to equality and freedom from discrimination – right to free consent to marry and stay in a marriage – scope of the rights - what was the scope of the right to equality and freedom from discrimination and the right to marry a person based on the free consent of the parties - Constitution of Kenya, 2010 articles 27 and 48.
Constitutional Law – fundamental rights and freedoms – right to equality and freedom from discrimination – difference between differentiation and discrimination - under what circumstances would differentiation amount to discrimination - under what circumstances would discrimination amount to unfair discrimination - Constitution of Kenya, 2010 article 27

Brief Facts:
The petitioner had entered into a marriage with a party who had misrepresented facts. Upon enjoying more than a year of marriage, the petitioner found out that her husband had married another woman before they shared nuptials. Aggrieved the petitioner sought to annul the marriage but was estopped by section 73(2) of the Marriage Act that provided that a court could only grant a decree of annulment if the petition was made within one year of the celebration of the marriage. The instant petition was filed on the contention section 73(2) violated the rights to equality and non-discrimination, conscience and thought, free consent to and within marriage of a party to a marriage which met the conditions for annulment but was filed a year after the marriage.

Issues:
  1. Whether section 73(2) of the Marriage Act that provided that a court could only grant a decree of annulment if the petition was made within one year of the celebration of the marriage violated the rights to equality and non-discrimination, conscience and thought, free consent to and within marriage of a party to a marriage which met the conditions for annulment but was filed a year after the marriage.
  2. Whether section 8(2) of the Marriage Act (the Act) that provided that a polygamous marriage would not be converted to a monogamous marriage unless at the time of the conversion the husband had only one wife was discriminatory.
  3. What was the scope of the right to equality and freedom from discrimination and the right to marry a person based on the free consent of the parties?
  4. Under what circumstances would differentiation amount to discrimination?
  5. Under what circumstances would discrimination amount to unfair discrimination?

Relevant Provisions of the Law
Constitution of Kenya, 2010
Article 45(2)
45. Family
(2) Every adult has the right to marry a person of the opposite sex, based on the free consent of the parties.

Marriage Act (Act No. 4 of 2014)
Sections 8(2), 73(2)
8. Conversion of marriages
(2) A polygamous marriage may not be converted to a monogamous marriage unless at the time of the conversion the husband has only one wife

73. Grounds for annulment of marriage
(2) The court shall only grant a decree of annulment if—
(a) the petition is made within one year of the celebration of the marriage;
(b) at the date of the marriage and regarding subsections (1)(b) and (c), the petitioner was ignorant of the facts alleged in the petition; and
(c) the marriage has not been consummated since the petition was made to the court.

Held:
  1. Interpretation of the constitution covered the following controlling dichotomy:
    1. Plain words of the Constitution.
    2. Social consensus on what the meaning words and phrases in the impugned provisions of the statute and the fusion approach in the Constitution.
    3. The nature of things the words referred to best understanding of the concepts embodied the words of the constitution and by the manifest in the referenced statute.
    4. The intentions or original meanings of framers of either the constitution text or the impugned statutes.
    5. Decisions made by the superior courts.
  2. The principle of sovereignty was important in constitutional interpretation. The purpose of separation of powers was to protect the liberty of the individual by making tyrannical and arbitrary state action more difficult. The Constitution divided power between the executive, legislature and the judiciary branches with each arm checking the other, save for the characteristics of independence to facilitate functionality a kind of oversight for sustainability of the rule of law. There would be danger in approaching the interpretation of the Constitution as part of the duty of the court to encroach into the realm of the legislature or executive without compelling and substantive cause.
  3. Article 258 of the Constitution placed a duty of fidelity to the constitution calls upon the courts to act according to the instrumentality reading of the Constitution as a whole. Articles 20, 22, 23, 24, 258 and 259 of the Constitution gave effect to the existence of an open and democratic society based on freedom, human dignity, equality, equity, human rights and fundamental justice.
  4. In interpreting the fundamental rights and freedoms in the Bill of Rights, courts had to take the model of looking at the Constitution as a whole, as a purposive and generous, giving effect to values of substantive equity.
  5. If differentiation was on a specified ground, then discrimination would have been established. If it was not on a specified ground, then whether or not there was discrimination will depend upon whether, objectively, the ground was based on attributes and characteristics which had the potential to impair the fundamental human dignity of persons as human beings or to affect them adversely in a comparably serious manner.
  6. If differentiation had been found to have been on a specified ground, then unfairness would be presumed. If on an unspecified ground, unfairness would have to be established by the complainant. The test of unfairness focused primarily on the impact of the discrimination on the complainant and others in that situation. There was need for the petitioner to show that section 8(2) of the Marriage Act (the Act) had a discriminatory effect or intended to discriminate.
  7. The one-year limitation period from the perspective of the petitioner to seek for annulment of her marriage was likely to subject one to physical, mental and social predicament for a conduct which was not her own making. The question whether the marriage was void or voidable was for courts to consider within the provisions of article 50(1) of the Constitution. The bar of one year was a characteristic defect. It was plausible that a court seized of jurisdiction over the cause of action (annulment) should not be limited to remedy the voidable marriage.
  8. A constitutional petition should set out with a degree of precision the petitioner’s complaint, the provisions infringed and the manner in which they were alleged to be infringed. Before a court considered whether any legislative action survived strict scrutiny it had to be sure that the provisions of a statute actually impaired the right complained of by the petitioner. The one attacking the constitutionality of a statute or a provision bore the burden of sustaining it by proving its unconstitutionality.
  9. The language in section 73(2) of the Marriage Act the drafters acknowledged that the parties to a marriage union had fundamental rights that pre-existed the formation of the marriage. The letter and spirit of the marriage contract was the right to personal autonomy on reproductive and sexual rights which precluded the other spouse from subjecting another to torture, mental anguish, emotional stress, cruelty, servitude, false misrepresentation and non-disclosure of material facts of a very decisive character for one to make an informed decision affecting his or her fundamental rights. Those decisions included whether to continue to consummate and sustain a void or voidable celebrated marriage union.
  10. Questions of value judgment pertinent to the limitation of time in section 73(2) of the Marriage Act before one could access an independent tribunal or court to had her case heard on the merits as provided for under article 50(1) of the Constitution for the declaration of the marriage to be declared void ab initial was unreasonable. That redress in a court of law was to avoid the consequential damage to the rights protected under the Constitution. It was sufficient that the statute guided judicial making process without limitation for an aggrieved party to approach the seat of justice immediately the cause of action arises.
  11. The petitioner assumed that she had acquired the domicile of the man with effect from the date of the marriage. The prima facie validity of the marriage and its subsistence was however characterized with irrefutable evidence that her spouse had contracted a previous union governed by the Marriage Act. The defect alleged concerned the formation of the marriage with someone who had no capacity to enter into a second marriage. It was just and in the public interest that the Kenyan Courts should be seized of the matter in the first instance to rule on the un-tenability inherent in a voidable marriage.
  12. The message parliament wanted to impart to the courts under section 73(2) of the Marriage Act was one finding herself or himself in a voidable marriage ought to live in detention inconsistent with the rights to equality, dignity, conscience, liberty, freedom of choice as prescribed in the bill of rights. The magnitude of its intrusion to the individual cognate rights was unreasonable and unjustified. In the context of Kenya’s constitutional democracy which espoused the rule of law, guaranteed the rights of citizens entering into a marriage contract to a fair, expeditious, efficient and proportionate decision making process in adjudication of disputes which may arise within the marriage.
  13. The petitioner by dint of section 73(2) of the Act in spite of parliament good intentions deprived the essence of the right to access court in real time and in contravention of the equality principle before the law. Therefore, the rationality or reasonableness of the measure as to time adherence of one year was scarcely incompatible with the fundamental rights and freedoms in the Constitution.
  14. An illegality of a marriage arising out of fraud or false misrepresentation on capacity by either party should for the purpose of fundamental justice to forestall any further violation or infringement of one’s human rights.
  15. The proportionality principle provided that larger harms imposed by the state should be justified by weightier reasons and that more severe transgressions of the law be more harshly sanctioned than less severe ones. The proportionality test was an important aspect of the inquiry relating to whether or not that the purpose of the impugned statute infringed the circumstances and exception provided for by section 73(2) of the Act. The doctrine of proportionality required the constitutional court to assess precisely and sufficiently the important purpose of the impugned statutory provisions, then the Constitutionality of the meant used as prescribed by law through a four-tier pronged approach:
    1. rationality which was minimal impairment.
    2. Proportionality and the relative weight accorded to interests and considerations in the challenged legislation.
    3. The heightened scrutiny test was not necessarily appropriate to the protection of human rights.
    4. whether it is plainly implicit in the notion that fundamental rights once identified as such deserves enhanced protection.
  16. Intention was construed by scrutinizing the language used in the provision which inevitably discloses its purpose and effect. It was the task of a court to give a literal meaning to the words used and the language of the provision had to be taken as conclusive unless there was an expressed legislative intention to the contrary.
  17. If the marriage was voidable it must in my opinion be regarded as having no legal effect to the parties presumed to have consummated the union. A decree of annulment should be obtainable at any time the crystalizing factors were ascertained by either the woman or the man to the marriage. A grave omission of the provisions was that the grant of decrees of nullities outside the one-year period was not tenable only and until a petitioner satisfied section 73(2)(b) of the Act.
  18. In interpreting section 73(2)(b) of the Act the court would be faced by the inevitable problem of construction, interpretation and deconstruction as to the phase, “the petitioner was ignorant of the facts alleged and the marriage had not been consummated.”
  19. The marriage could be considered bigamous and voidable. Section 73(2) of the Act provided legitimacy status of the marriage with the other party or the parties to the marriage who were within the prohibited degrees of solemnizing another union. In the instant petition the petitioner believed that the marriage was valid only until to be confronted with disclosure by her so called spouse to have celebrated an earlier union without her knowledge. The nature of the marriage was therefore void or voidable on the grounds of incapacity. That question ought to be determined by the court through reference to the proper law of the marriage on annulment cause without limitation of time.
  20. All acts of parliament were considered to be constitutional unless proved otherwise. To determine unconstitutionality, the petitioner had to prove that the impugned section violated the constitution.
  21. The union was void . However, an annulment can only be sought within the first year of marriage which was offensive given the fact that the Constitution demanded respect for the right against discrimination, and the rights to dignity, equality, right to information to make an informed decision which affected ones rights and fundamental freedoms. Courts were required to value rights as of necessity. The balancing of the interests and rights together with the consequent line to be drawn by the impugned statutory provisions were instructive that not only the restriction of one year impairs access to justice for a cause of action which arose after the expiry of the prescribed period, but on the face of it was a glaring disproportion of depriving a petitioner that right in article 38 of the Constitution.
  22. A right was an entitlement that an individual has that let her or him act in a certain way or that lets her or him demand certain treatments from the state or that prevents others from acting towards her or him in a certain way. Under article 24 of the Constitution, rights had limitations. Just because you have a right to something, did not mean that you can always enjoy those rights to its full extent. The right to equal treatment before the law for an aggrieved party seeking to annul a voidable marriage after the expiry of one year violated access to legal protections guaranteed in the Constitution.
  23. If a party to a marriage was unable to consummate the marriage because of his or her incapacity but was well capable of having sexual intercourse with another person, notwithstanding that act under the Marriage Act the he or she would be taken to be incapacitated vis-à-vis his or her spouse if it was proved there was existence of an earlier marriage undisclosed to the other. That pillar was of great importance in the instant petition since the second marriage was solemnized without material disclosure from the husband to the petitioner that he had consummated an earlier marriage.
  24. The wording of section 73(2) of the Act did not distinguish between void and voidable marriages which may require a husband or a wife to file a writ claiming a judgment of nullity in respect of his or her marriage. Section 73(2) of the Act was inconsistent with the provisions of the Act on the phrase married women. A woman or a man in a void marriage was not entitled to the rights which accrue under article 45(3) of the Constitution with exception of the children whom might have been born during the subsistence of that marriage.
  25. The requirement of parties to a marriage to file for annulment of the marriage within a year under section 73(2) of the Marriage Act infringed the importance of article 27, 47 and 48 of the Constitution. The purpose of the provision was to withhold that right rooted in the fundamental justice for a court to render a decision on the issue of annulment expeditiously. The court as an impartial forum in article 50(1) of the Constitution should be allowed to adjudicate any petition/claim arising out of void or voidable marriage unions.
Petition allowed; each party was to bear their own costs.


Kenya Law
Case Updates Issue 042/22-23
Case Summaries

CONSTITUTIONAL LAW

The mandatory minimum sentences under the Sexual Offences Act were unconstitutional.

Headnote:      There was a need for legislative amendments to the Sexual Offences Act. A strict application of some of the provisions of the Sexual Offences Act may cause injustice. To the extent that the Sexual Offences Act prescribed mandatory minimum sentences, with no discretion to the trial court to determine the appropriate sentence to impose, such sentences fell foul of article 28 of the Constitution. However, the court was at liberty to impose sentences prescribed thereunder so long as the same were not deemed to be the mandatory minimum prescribed sentences.

Maingi & 5 others v Director of Public Prosecutions & another (Petition E017 of 2021) [2022] KEHC 13118 (KLR) (17 May 2022) (Judgment)

High Court at Machakos
GV Odunga, J
May 17, 2022
Reported by John Ribia
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Constitutional Law – fundamental rights and freedoms – right to human dignity – where penal provisions prescribed mandatory minimum sentences without granting the trial court the discretion to determine the appropriate sentence - Whether the prescription mandatory minimum sentences under the Sexual Offences Act  with no discretion to the trial court to determine the appropriate sentence to impose, was unconstitutional and a violation of the right to dignity of accused persons – Constitution of Kenya, 2010 article 28; Francis Karioko Muruatetu & another vs Republic [2017] eKLR
Case Law – interpretation of judicial decisions – interpretation of Francis Karioko Muruatetu & another vs Republic [2017] eKLR - What was the import of Francis Karioko Muruatetu & another vs Republic [2017] eKLR and the directions issued thereunder as pertains to the constitutionality of mandatory minimum and mandatory maximum sentences imposed in Kenya’s penal legislative provisions without the discretion of the trial court.
Law of Precedent – parts of a judgment – ratio decidendi – obiter dictum – what was the difference between ratio decidendi and obiter dictum - what were the guiding principles in determining what part of the judgment was the ratio decidendi - What were the guiding principles in determining what part of the judgment was the obiter dictum

Brief Facts
The petitioners were convicts serving offences under the Sexual Offences Act (the Act). Their grievance stemmed from the fact that the Sexual Offences Act prescribed minimum-maximum sentencing provisions which fettered with the discretion of courts in imposing alternative sentences or order. They contend that the mandatory nature of the sentences resulted in teeming up large number of prisoners who were serving various minimum-maximum sentences under the Act. The petitioners contended that the mandatory minimum-maximum sentences violated their right to human dignity.

Issues:

  1. What was the difference between ratio decidendi and obiter dictum?
  2. What were the guiding principles in determining what part of the judgment was the ratio decidendi?
  3. What were the guiding principles in determining what part of the judgment was the obiter dictum?
  4. What was the import of Francis Karioko Muruatetu & another vs Republic [2017] eKLR and the directions issued thereunder as pertains to the constitutionality of mandatory minimum and mandatory maximum sentences imposed in Kenya’s penal legislative provisions without the discretion of the trial court.
  5. Whether the prescription mandatory minimum sentences under the Sexual Offences Act  with no discretion to the trial court to determine the appropriate sentence to impose, was unconstitutional and a violation of the right to dignity of accused persons.  Read More..

Held:

  1. The interpretation and application of Francis Karioko Muruatetu & another vs Republic [2017] eKLR (Muratetu case/Muratetu 1) to matters other than murder cases that persuaded both the High Court and the Court of Appeal to apply the reasoning in the Muruatetu Case to other similarly placed offences with prima facie, mandatory death sentences or mandatory minimum sentence, particularly in robbery with violence and offences under the Sexual Offences Act. The Supreme Court similarly found that such mandatory sentences were unconstitutional in so far as they deprived the courts of the discretion to mete sentences other than the prescribed ones.
  2. However the Supreme Court issued directions in the same matter (Muratetu 2) in which reference was made to any provision of any other statute. The reference throughout the judgment was only made to section 204 of the Penal Code and it was the mandatory nature of death sentence under that section that was said to deprive the courts of their legitimate jurisdiction to exercise discretion not to impose the death sentence in appropriate cases. The decision in Muruatetu did not invalidate mandatory sentences or minimum sentences in the Penal Code, the Sexual Offences Act or any other statute.
  3. The Muratetu case was only dealing with the offence of murder and not any other offence. As regards the sentences in respect of other offences in which mandatory sentences were imposed, parties were at liberty to their constitutional validity by properly filing, presenting, and fully arguing before that and escalating to the Court of Appeal, if necessary, at which a similar outcome as that could be reached. Nothing barred courts upon hearing such challenges from applying the reasoning in the Muratetu case and arriving at the same or different determinations.
  4. When a court delivered judgement in a case it outlined the facts which it found to have been proved on the evidence. Then it applied the law to those facts and arrived at a decision, for which it gave the reason. It was that reason that constituted the ratio decidendi of that case. Such reason was not the law that was getting attracted in the contemporary case but was the necessary notion which helped the court arrive at a particular decision. It was that part of the precedent which had to be followed by the courts in subsequent decisions but not the general observations of the court. Ratio decidendi literally meant reason for deciding. In the judicial context, it was the reason which was cited for arriving at a decision in a case.
  5. As the facts may not be similar in other cases, the observations pertinent to the facts made by the court could not be binding in the other cases though the similar laws were attracted. But the reasons for arriving at a decision were binding. In case there were multiple reasons for deciding in a manner, all those reasons would be binding in the subsequent cases. However, it was also possible for judges constituting a bench to agree on the judgement or final order without necessarily agreeing on the ratio for arriving at such a decision. Such judgment or order did not carry an obligation to be followed as a precedent. Any of the decisions of a court which was binding as a precedent was not because of the end result or the order of that decision but was based on the reasons and principles referred to in such a decision. The ratio in deciding a case would evolve from the interpretation of a statute, principles of natural justice, and the common law principles.
  6. The reason which the court gave for his decision was not binding and may not correctly represent the principle. While the reason may be found to have been wrong or based on a misunderstanding of legal history, the principles established by the case would still be valid and binding. There may be cases in which no reasons were given, but that did not affect their authority as a precedent. The ratio of case may not necessarily be the same as what the court which delivered the decision had in mind when he did so. The ratio was culled from the reason for his decision by the court which interacted with the said decision subsequently.
  7. It was not the rule of law set forth by the court, or the rule enunciated, which necessarily constituted the principle of the case. There may be no rule of law pronounced in the judgment, or the rule when stated may be too wide or too narrow. In the appellate courts the various judges could set forth different rules of law, but nevertheless each of these cases had to contain a principle which was binding in future cases. Courts did not explicitly point out in their judgments when something was the ratio decidendi thus making it difficult to tell the ratio from the obiter statements. Courts in arriving at their decisions did not set out to create new rules or principles.
  8. One of the guiding principles in determining ratio decidendi was to determine whether a particular statement made in the judgement was necessary for the outcome. If the court needed to rely on that particular legal principle to reach that conclusion, the statement was ratio decidendi. Ratio decidendi was said to be the principle or principles deduced from authority in which court reached its decision or negatively, the principle without which the court would not have reached the decision that it did reach.
  9. Obiter dictum was the opinion expressed by the judge in the court or during pronouncement of judgment which did not have any importance in the decision. Those were the incidental remarks made by the court while dealing with the actual conflict between parties but did not constitute important constituents to arrive at a decision. While they may not be binding, they may carry a considerable weightage, depending on the kind of dictum given by the court and the hierarchy of the court in the judicial system. If the dictum was a casual remark by the court, it did not have any effect on the parties or the subsequent cases. In another scenario, certain obiter dicta had recommendatory or persuasive value but did not bind anyone.
  10. The Muratetu case holding that the mandatory nature of the death sentence as provided for under section 204 of the Penal Code was unconstitutional did not disturb the validity of the death sentence as contemplated under article 26(3) of the Constitution. Neither did the introduction nor the order constituted the reason for deciding in the manner the court did. The ratio decidendi could not be the legal provisions relied upon by the court which were articles 25 and 28 of the Constitution. They did not constitute the ratio decidendi of the case.
  11. The ratio decidendi of the Muratetu case was that failing to allow a court discretion to take into consideration the convicts’ mitigating circumstances, the diverse character of the convicts, and the circumstances of the crime, but instead subjecting them to the same (mandatory) sentence thereby treating them as an undifferentiated mass, and subjecting them to the sentence wholly disproportionate to the accused's criminal culpability, violated their right to dignity.
  12. The finding was arrived at by applying the relevant provisions of the Constitution to the facts of that case. It was neither the applicable rules or the final finding that constituted ratio decidendi but the reason for the finding that a legislation that purported to deprive the court of its discretion, in imposing a sentence, to take into account, inter alia, the convicts’ mitigating circumstances, the diverse character of the convicts, and the circumstances of the crime was liable to be struck out as being unconstitutional, not because the sentence prescribed was necessarily unconstitutional, but due to the fact that it did not permit the court to consider a range of other sentences appropriate to the case. The Supreme Court in the Muratetu case did not outlaw death sentence but simply said that as a mandatory sentence, it was unconstitutional.
  13. The offences under the Sexual Offences Act prescribed minimum mandatory sentences in several sections. Article 27 of the Constitution ought to be taken into account. Clause 7 of the transitional and consequential provisions of the Constitution provided that all laws in force immediately before the effective date continued in force and were to be construed with the alterations, adaptations, qualifications and exceptions necessary to bring it into conformity with conformity with the Constitution. Minimum mandatory sentences, prima facie, did not permit the court to consider the peculiar circumstances of the case in order to arrive at an appropriate sentence informed by those circumstances as the court was deprived of the discretion to consider whether a lesser punishment than the minimum prescribed, would be more appropriate in the circumstances.
  14. Section 4(1) and (2) of the Probation of Offenders Act qualified sexual offenders to be considered for probation. If they did, then the proponents of minimum mandatory sentences may find it difficult to justify such sentences on the ground that sometimes courts imposed unreasonable or lenient sentences which did not deter commission of the particular offences. Such reasoning may be taken to mean that there was lack of faith in the judicial system to mete appropriate sentences, a proposition that was dangerous in a system that believes in the rule of law. The fact that a trial court may err in imposition of sentences ought not to be a reason for taking away judicial discretion and handing it over to the legislature.
  15. The judicial system provided for appellate process where parties were dissatisfied with decisions of the lower court. To remove from the courts, the power to mete appropriate sentences merely because the lower courts or any other court for that matter were not imposing sensible sentences amounted to judicial coup. All the tiers of the judiciary could not be said to be wrong and if they arrived at the same decision then everyone had to live with that decision however unpalatable it might appear since according to the law, that was the right decision.
  16. Sentencing was a matter within the discretion of the trial court. The Kenya Judiciary Sentencing Policy Guidelines appreciated that whereas mandatory and minimum sentences reduced sentencing disparities, they however fettered the discretion of courts, sometimes resulting in grave injustice particularly for juvenile offenders.
  17. The Supreme Court in Muratetu 2 did not address itself to the constitutionality of mandatory minimum sentences. It simply clarified that Muratetu 1 only dealt with murder. The Supreme Court left it open to the High Court to hear any petition that may be brought challenging inter alia mandatory minimum sentences and made a determination one way or another. The Supreme Court did not hold that the High Court ought not to apply the reasoning in Muratetu 1.
  18. Even without the application of the ratio in Muratetu 1, whereas the sentences prescribed under the Sexual Offences Act were not unconstitutional by the mere fact of such prescription and the trial courts were at liberty to impose them, the imposition of the same as the minimum mandatory sentences did not meet the constitutional threshold particularly section 28 of the Constitution.
  19. The court did not doubt the good intentions of the drafters of the Sexual Offences Act in taking steps to curb the menace of sexual offences and the trauma it caused to the victims of the said offence. The perpetrators of the said offences had to be condemned by all means. However, the sentences to be imposed had to meet the constitutional dictates.
  20. Whereas the sentences prescribed may not be necessarily unconstitutional in the sense that they may still be imposed, in deciding what sentences to impose the courts had to ensure that whatever sentence was imposed upheld the dignity of the individual as provided under article 28 of the Constitution. Since the provisions of the Sexual Offences Act came into force earlier than the Constitution, the prima facie mandatory sentences had to be construed with the said adaptations, qualifications and exceptions when it came to the mandatory minimum sentences and particularly where the said sentences did not take into account the dignity of the individuals as mandated under article 28 of the Constitution as appreciated in Muratetu 1. It was the construing of those provisions as tying the hands of the trial courts that had to be held to be unconstitutional.
  21. The instant finding did not mean that the court ought not to mete out what appears as prima facie mandatory minimum sentence. The circumstances of the offence had to be considered and having done so nothing barred the court from imposing such sentences as were appropriate to the offence committed. The courts role was to align the legislation that was in existence before the promulgation of the Constitution of Kenya, 2010 with the letter and spirit of the Constitution.
  22. [Obiter]      There was a need for legislative amendments to the Sexual Offences Act. A strict application of some of the provisions of the Sexual Offences Act may cause injustice. The ultimate decision as to what ought to be done remained that of the legislature.

Petition partly allowed.
Orders

  1. To the extent that the Sexual Offences Act prescribed mandatory minimum sentences, with no discretion to the trial court to determine the appropriate sentence to impose, such sentences fell foul of article 28 of the Constitution. However, the court was at liberty to impose sentences prescribed thereunder so long as the same were not deemed to be the mandatory minimum prescribed sentences.
  2. Taking cue from the decision in of Francis Karioko Muruatetu & another vs Republic [2017] eKLR those who were convicted of sexual offences and whose sentences were passed on the basis that the trial courts had no discretion but to impose the said mandatory minimum sentence were at liberty to petition the High Court for orders of resentencing in appropriate cases.
  3. No order as to the costs.