Kenya Law Weekly Issue 017/22-23

Relevant Provisions of the Law
Sexual Offences Act (No. 3 of 2006)
Sections 3(3), 8(2), (3), (4), 11 (1) and 20 (1)
3. Rape
(3) A person guilty of an offence under this section is liable upon conviction to imprisonment for a term which shall not be less than ten years but which may be enhanced to imprisonment for life.

8. Defilement
(2) A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life.
(3) A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.
(4) A person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years.

11. Indecent act with child or adult
(1) Any person who commits an indecent act with a child is guilty of the offence of committing an indecent act with a child and is liable upon conviction to imprisonment for a term of not less than ten years.

20. Incest by male persons
(1) Any male person who commits an indecent act or an act which causes penetration with a female person who is to his knowledge his daughter, granddaughter, sister, mother, niece, aunt or grandmother is guilty of an offence termed incest and is liable to imprisonment for a term of not less than ten years:
Provided that, if it is alleged in the information or charge and proved that the female person is under the age of eighteen years, the accused person shall be liable to imprisonment for life and it shall be immaterial that the act which causes penetration or the indecent act was obtained with the consent of the female person.

Held:

1. The judiciary had the province and duty of the judicial department to say what the law was. In deciding whether any provisions of a law passed by the Parliament as an ordinary law were inconsistent with the Constitution, the courts were concerned with the propriety or expediency of the law impugned. They were concerned solely with whether those provisions, however reasonable and expedient, were of such a character that they conflicted with an entrenched provision of the Constitution.
2. The interpretive authority of the courts was rooted in a duality. On one hand, the judiciary by virtue of life tenure enjoyed independence from the political branches and public passions of the moment. Insulated from partisan pressured, the judiciary bore a responsibility to render decisions without fear or favor toward the political majority. Independent courts served as an excellent barrier to the encroachments and oppressions of the representative body, and they played a peculiarly essential role in safeguarding individual rights and liberties. On the other hand, the judiciary had no influence over either the sword or the purse; it had neither force nor would, but merely judgment. The voice of the judiciary on constitutional questions had to ultimately draw its authority from the public’s acceptance of its institutional role, even when its specific decisions were controversial.
3. In interpreting and applying the Constitution, the judiciary had to exercise independence from politics and reflect the common will in order to secure the democratic legitimacy of its decisions. The overriding characteristics of the Constitution were: -
   1. that the Constitution was the supreme source of law;
   2. that human rights and fundamental freedoms were protected as inherent and inalienable rights of the people;
   3. that the Constitution was based on the rule of law;
   4. that the principle of separation of powers was entrenched in the Constitution;
   5. that one branch of government may not trespass on the province of any other under the principle of separation of powers.
4. The Supreme Court in Francis Karioko Muruatetu & another v Republic, [2017] eKLR (Muratetu case), albeit, in the context of the mandatory death penalty addressed the nature of mandatory sentences and found such sentences to be constitutionally infirm for inter alia offending the right to a fair trial guaranteed under article 50 (1) of the Constitution. The principles flowing from the Muruatetu case were binding to all courts in Kenya. The disposition of constitutional questions had to be formidable in terms of some constitutional principles that transcended the case at hand and were applicable to all comparable cases. Court decisions could not be ad hoc. They had to be justified and perceived as justifiable on more general grounds. A mandatory minimum sentence carried the same characteristics and effect regardless of the offence created by the provision.
5. The applicable principles to mandatory minimums, irrespective of offence were:
   1. A law that took away judicial discretion could only be regarded as harsh and unjust.
   2. The rights of an accused person to a fair trial under article 50 of the Constitution were absolute as it was one of the rights which could not be limited pursuant to article 25(c) of the Constitution.
   3. The trial process did not stop at convicting the accused. Sentencing was a crucial component of a trial. It was during sentencing that the court heard submissions that impacted on sentencing. That meant that the principle of fair trial had to be accorded to the sentencing stage too.
   4. Mitigation was an important congruent element of fair trial. The fact that mitigation was not expressly mentioned as a right in the Constitution did not deprive it of its necessity and essence in the fair trial process. The rights pertaining to fair trial of an accused pursuant to article 50(2) of the Constitution were not exhaustive.
   5. The right to fair trial was one of the cornerstones of a just and democratic society, without which the rule of law and public faith in the justice system would inevitably collapse.
   6. If a court did not have discretion to take into account mitigating circumstances it was possible to overlook some personal history and the circumstances of the offender which could make the sentence wholly disproportionate to the accused's criminal culpability. Failure to individualize the circumstances of an offence or offender may result in the undesirable effect of 'over punishing' the convict.
   7. A fair trial had many facets and included mitigation.
   8. Another aspect of the mandatory sentence was its discriminate nature; discriminate in the sense that the mandatory sentence gave differential treatment to a convict under that section, distinct from the kind of treatment accorded to a convict under a section that did not impose a mandatory sentence. Article 27 of the Constitution sets out non-discrimination provisions.
6. A court faced with a case where the minimum sentencing provisions applied, would have had no choice, but to impose the prescribed sentence. That would happen regardless of what the court might regard as the appropriate sentence in the circumstances and accordingly, the court’s discretion in the circumstances was fettered. The enactment of the legislation meant that it was no longer business as usual, when sentencing for the specified offences. Sentence discretion was a vital element of Kenya’s law of sentencing and at the heart of that discretion was the principle that each case should be treated on its own facts or merits and it was for that reason that the sentencing discretion lay with the trial court.
7. Infliction of punishment was pre-eminently a matter for the discretion of the trial court. The fact that courts should, as far as possible, have an unfettered discretion in relation to sentence was a cherished principle which called for constant recognition. Such discretion permitted of balanced and fair sentencing, which was a hallmark of enlightened criminal justice.
8. The principle of individualization of punishment required proper consideration of the individual circumstances of each accused person. Sentencing was a discretionary power exercisable by the court and it involved the deliberation of the appropriate sentence. Finding an appropriate sentence or a just punishment fell somewhere between striking a balance on key procedural ideals namely – rule making which ensured consistency and predictability. Secondly, sentencing required the judge to exercise discretion, which promoted flexibility and efficiency in the administration of justice. A balance of the two ends promoted consistency in sentencing at the same time as ensuring that courts were flexible to adjust sentences when there was a need.
9. While the law exists on mandatory sentencing, introducing flexibility enabled the court to strike the right balance. A review of sentences imposed by the courts since the enactment of the Sexual Offences Act disclosed massive and worrying inconsistencies which bordered on injustice because the peculiar circumstances of the case were ignored.
10. The core value was to ensure that courts imposed a just and appropriate sentence. That required a judge sentencing an offender to ensure that the aggregation of the sentences appropriate for each offence was a just and appropriate measure of the total criminality involved. The just and appropriate sentence arrived at considering the peculiar circumstances of the case could only be arrived if the sentence was fixed and pre-determined regardless of the peculiar circumstances.
11. Some defilement cases were preceded or accompanied by extreme violence and sometimes leave life threatening impairments or even death. Offenders in such cases deserved no mercy. Stiffer or even maximum sentences had to be deployed in such cases. Other cases involved very young and innocent girls or boys, mentally or physically challenged victims or extremely aged and helpless persons. Offenders in such cases deserved no mercy. Others cases involved persons who had been entrusted with young children, and they abused the trust. Such persons deserved no mercy. Other cases involved teenagers and boys of same age or age group both discovering their bodies. In such cases the boy child ended up in jail once convicted and a mandatory sentence was imposed regardless of the peculiar circumstances. Other cases involved girls who though under 18 have had a series of relationships. Others offences could be attributed to poor parenting. In that category one found irresponsible absentee fathers or mothers. Such boys or girls needed guidance and counseling rather than mandatory life imprisonments. A visit to any prison in Kenya would confirm all those categories.
12. Court’s advantage centered on the fact that they tried individual cases and they could thus make sentencing decisions based on the particular facts of each case as they possessed information pertaining to a particular accused. Courts should be granted an unfettered discretion to impose sentences in cases presented to them. That was because the sentencing discretion could only be properly exercised on the basis of all the facts relevant to the matter. While the legislature was concerned in a general way with the penalty that should attach to an offence, the court was concerned in a case-to-case basis the actual sentence that should be meted out to the particular offender. There was a difference between the preoccupations of the legislature in legislating a penalty provision and the pre-occupations of the court in sentencing a particular offender.
13. Sentencing an offender was not the mechanical application of letters and number in a formulaic table. It was the human deliberation of what was the just punishment which could be given to a particular offender seen to have strayed from the set of norms at the time laid down by society. In that sense, convicting or discharging someone was easier. The formidable task, constitutional in character, comes at the moment of sentencing. Sentencing involved a judicial duty to individualize the sentence tuned to the circumstances of the offender as a just sentence. It could not be likened to the mere administration of a common formula or standard or remedy.
14. However, not every mandatory or mandatory minimum penalty prescribed by legislation breached the constitutional principle of the separation of powers as an encroachment by the legislature on judicial power.
15. The citizen in a given case of mandatory/minimum sentence had a right to put in a plea in mitigation to show that the imposition of the mandatory minimum sentence was not warranted in his case. If the court in considering all the facts and circumstances of the case came to the conclusion that that indeed was the case, the court would be perfectly entitled to read down the mandatory minimum without feeling bound by it. The court was empowered to interpret that the imposition of any grossly disproportionate penalty as unconstitutional. The court was also empowered to interpret that the legislative removal of the intrinsic discretion of the court to sentence a particular accused in the special circumstances of his case who in the court's judicial view deserved much less, was unconstitutional.
16. What an offender deserved in the real sense of the word was meant by fair hearing which included a fair sentence in the evolving concept of constitutionality and constitutionalism. In the adherence to the rule of law and application of democratic principles to given situations, constitutionalism was not limited to mere interpretations of the various articles but in the actual application of the articles with the evolving concepts behind them to the different and actual scenarios coming to court for the actual sentencing process. In the evolving concept of justice, sentencing should no longer be considered as an orphan of the law.
17. The Muruatetu case one was categorical that mitigation forms an integral part of a fair trial. An accused person that was deprived the right to mitigate was curtailed of their rights under article 50(1). Taking away judicial discretion and the fact that the mandatory minimum sentences deprive the court the discretion to prescribe a sentence taking into account the individual circumstances of the accused unfair to the accused and it impinged on the right to a fair trial.
18. Sentencing was an integral part of a judicial function and an important element of a fair trial process. The impugned provisions deprived the accused person the benefit of a lesser sentence informed by the circumstances of each offence. Unlike in other offences, the mandatory minimum sentences were discriminatory because they deprived the accused person the full benefit of the law contrary to article 27 of the Constitution.
19. A mandatory minimum sentence was not per se unconstitutional. The legislature in the exercise of its legislative powers was perfectly entitled to indicate the type of the sentence which would fit the offence it created. It had never been suggested that the sphere of judicial power was invaded when Parliament provided for a maximum or minimum penalty for offences which were duly proved in courts of law. What was decried was absence of judicial discretion to determine an appropriate sentence taking into account the individual circumstances of an accused person, depriving an accused person the right to be heard in mitigation and or depriving the court the discretion to determine an appropriate sentence.
20. The petitions were merited. The court was empowered by article 23(3) of the Constitution to grant appropriate reliefs. Appropriate reliefs would in essence be relief that was required to protect and enforce the Constitution. Depending on the circumstances of each particular case, the relief may be a declaration of rights, an interdict, a mandamus, or such other relief as may be required to ensure that the rights enshrined in the Constitution were protected and enforced. If it was necessary to do so, the court could even have to fashion new remedies to secure the protection and enforcement of these all-important rights. The courts had a particular responsibility in that regard and were obliged to forge new tools and shape innovative remedies, if need be to achieve that goal.

Petitions allowed.
Orders

1. Declaration issued that sentencing remained a discretionary power, exercisable by the court and involved the deliberation of the appropriate sentence. To the extent that the provisions of sections 8(2), (3), (4), 11 (1), 20 (1) and 3(3) of the Sexual Offences Act deprived the court the discretion to determine the appropriate punishment taking into account the individual circumstances of each case, then the said provisions offended the notion of a fair trial contemplated under article 50(1) of the Constitution.
2. Declaration issued that to the extent that the citizen in a given case of mandatory/minimum sentence had a right to put in a plea in mitigation to show that the imposition of the mandatory minimum sentence was not warranted in his case, then sections 8(2), (3), (4), 11 (1), 20 (1) and 3(3) of the Sexual Offences Act deprived an accused person the right to mitigate which was a core component of a fair trial contemplated under article 50(1) of the Constitution.
3. Declaration issued that sentence discretion was a vital element of the Kenyan law of sentencing and at the heart of that discretion was the principle that each case should be treated on its own facts or merits. The sentencing discretion lay with the trial court.
4. Declaration issued that the infliction of punishment was pre-eminently a matter for the discretion of the trial court, and to the extent that the provisions of sections 8(2), (3), (4), 11 (1), 20 (1) and 3(3) of the Sexual Offences Act took away the courts discretion, ignoring the fact that the individualization of punishment required proper consideration of the individual circumstances of each accused person, then the said provisions deprived an accused person the benefit of judicial distention which was prejudicial to the accused.
5. Declaration issued that courts were to, as far as possible, have an unfettered discretion in relation to sentencing.
6. Declaration issued that sentencing discretion permitted balanced and fair sentencing. The absence discretion was potentially prejudicial to an accused person.
7. To the extent that the impugned provisions prescribed minimum mandatory sentences, with no discretion to the trial court to determine the appropriate sentence to impose taking into account an accused persons individual circumstances and mitigation, such sentences fell foul of the right a fair trial guaranteed under article 50 of the Constitution because mitigation and sentencing were part and parcel of a fair trial process.
8. Declaration issued that the impugned mandatory minimum sentences were discriminatory in nature because they gave differential treatment to a convict under the impugned provisions distinct from the kind of treatment accorded to convicts under other offences which did not impose mandatory sentences, so, mandatory minimum sentences violate an accused rights under article 27 of the Constitution.
9. Order that persons convicted and imprisoned under the said offences were at liberty to the petition the High Court for mitigation and re-sentencing.
10. No order as to the costs.

Held:

1. The position of the trial court that, since the appellant did not adduce evidence to show that the Banking Act and Central Bank of Kenya Act did not regulate it, and because the appellant described itself as a financial institution, then some legislation had to regulate its conduct, was erroneous. The issue of unconscionable and excessive interest was raised by the respondent hence the respondent had the burden of proving that the appellant was regulated as alleged. The legal burden of proof lay upon the party who invoked the aid of the law and substantially asserts the affirmative of the issue. That was the purport of section 107(1) of the Evidence Act.
2. Section 44 of the Banking Act incorporated the in duplum rule which limited the amount a bank or financial institution could recover from a non-performing loan. Section 2 of the Banking Act defined an institution to mean a bank or financial institution or mortgage finance company. Financial institution was described to mean a company other than a bank which carried on or proposed to carry on financial business and included any other company which the minister could by notice on the gazette, declare to be a financial institution for the purposes of the Banking Act.
3. For purposes of section 44, it had to be established that the appellant was a bank or financial institution. The appellant was neither a bank nor a mortgage finance company. In order to qualify as a financial institution, the appellant had to either be gazetted as such by the Minister or be one that carried on or proposed to carry on financial business as defined under the Banking Act. To qualify as a financial institution, it had to accept money on deposit from members of the public and employ that money or part of it for lending or investment as contemplated under the Act. The appellant was not a deposit taking institution.
4. The finding by the trial court that by describing itself as a financial institution, the appellant brought itself under the ambit of the regulation under the applicable statutes was rejected by the instant court. The issue whether the appellant was regulated was not a matter of pleading or choice. The trial court failed to consider whether the appellant was subject to section 44 of the Banking Act. Section 44 of the Banking Act did not apply to the relationship between the appellant and the respondent. The rate of interest in the circumstances was governed by contractual provisions which were not disputed.
5. A court of law could not rewrite a contract with regard to interest as the parties were bound by the terms of their contract. Nevertheless, courts could interfere with or refuse to enforce contracts which were unconscionable, unfair or oppressive due to procedural abuse during formation of the meaningful choice for the other party. An unconscionable contract was one that was extremely unfair. Substantive unconscionability was that which resulted from actual contract terms that were unduly harsh, commercially unreasonable, and grossly unfair given the existing circumstances of the case.
6. The substantive unconscionability relied on by the respondent was based on breach of the section 44 of the Banking Act was not applicable to the instant case.

Appeal allowed.

1. The judgment of the Subordinate Court dated March 11, 2022 was set aside and substituted with a judgment for the appellant against the respondent for Kshs. 731,722.00.
2. The respondent was to pay costs of the subordinate court and of the instant appeal.