Ruth Rotich & Company AdvocatesCRIMINAL LAW AND SENTENCING GUIDELINES

INTRODUCTION

In criminal litigation, the courts are guided by the time spent by accused persons in custody during trial. This is in line with section 333(2) of the Criminal Procedure Code that prevents an accused person form serving a more severe sentence that he/she was to serve. Failure to adhere to the same, an accused person had the right to file a Constitutional Petition seeking redress of a denial, violation, or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights under Article 23(1) and 165(3)(b) of the Constitution.

In the case of Munene v Republic (Criminal Appeal 135 of 2017) [2022] KEHC 16250 (KLR) (15 December 2022),the appellant(Munene) was charged, convicted of the offence of attempted defilement contrary to section 9(1) as read with section 9(2) of the Sexual Offences Act. He was sentenced to serve 10 years’ imprisonment. The Appellant filed an appeal stating that the trial court erred in law and fact by not taking into consideration the time the accused spent in custody during the trial in his sentencing and failing to consider the judiciary’s sentencing guidelines in line with the famous Muratetu case.

ORDERS OF THE COURT

1. As a rule of the thumb, the first appellate court is mandated to re-evaluate the evidence and make its own conclusions, except bearing in mind that the trial court had the advantage of hearing and observing the demeanor of the witnesses.
2. In the Muratetu case, the Supreme Court restricted the application of the decision to cases under section 204(murder charge) of the Penal Code but when similar arguments are applied in respect to mandatory sentences in other provisions of law, the end result was that court’s discretion would be denied during sentencing deeming it unconstitutional.
3. A court had discretion in sentencing. Sentencing was part of due process and fair trial. To the extent that a provision of law took away the discretion of the court in sentencing, it offended the tenets of fair trial, and therefore, unconstitutional.
4. It would be legislatively justifiable to have minimum mandatory sentences that maximum mandatory sentences. This will give courts discretion to impose less or more than or the minimum sentence prescribed.
5. Sections 137 I(2)(a) and  333(2) of the Criminal Procedure Code required that a sentence shall take account of the period spent in custody. The trial court failed to consider the amount of time spent in custody by the accused person.
6. The trial court imposed a sentence of 10 years’ imprisonment because it was minimum mandatory sentence. Judicial discretion was not exercised. Such failure of exercise of discretion was a potential prejudice to the accused person.
7. The penalty clause was debatable on whether the 10 years imprisonment was a mandatory minimum sentence according to the court’s discretion.
8. The court found that the Court did not consider the amount of time pent by the accused in custody hence section 333(2 ) of the Criminal Procedure Code was not taken into consideration. The sentence was excessive and the same was reduced to 8 years imprisonment. This was because the accused person was a first offender. The sentence was to run from when he was first arraigned before the trial court, that was June 5, 2017.

CONCLUSION

The appeal was partly allowed.

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