A. INTRODUCTION
The Sexual Offences Act under Section 8 prescribes minimum sentencing provisions. Section 8(2) of the Act provides as follows;

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.

This provision has been subject to debate, especially considering the judgment delivered in Muruatetu 1 and 2 that a mandatory statute-provided-for sentence limits the judicial officers’ discretionary powers to sentence based on the individual circumstances of a case.

B. ISSUES
The discourse around this provision of the Sexual Offences Act is especially sparked by the differing decisions from the superior courts;

• The High Court has, in many decisions, found that the minimum sentences as provided for in the Sexual Offences Act are unconstitutional.
• Different benches of the Court of Appeal have arrived at different decisions regarding this issue
• On March 13, 2024, the Supreme Court of Kenya heard an appeal filed from the Court of Appeal in Nyeri on the constitutionality of the minimum sentencing provision and has yet to deliver judgment.

C. RECENT INCONSISTENCY IN COURT OF APPEAL DECISIONS

Case 1:
Benson Waithima Muchonge v Republic Criminal Appeal 176 of 2024

Trial Court

The Appellant in this case had been charged at the Chief Magistrate’s Court at Thika with defilement contrary to Section 8(1) and in the alternative, charged with committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act.

Upon hearing the case, the trial magistrate found the appellant guilty and was convicted accordingly and thereafter sentenced to life imprisonment as is the requirement under Section 8(2) of the Sexual Offences Act.

High Court
The Appellant lodged his first appeal against the conviction and sentence at the High Court at Nairobi. The High Court held that the Appellant’s guilt had been established beyond reasonable doubt, and that Section 8(2) of theAct provides for a life sentence for any person convicted of defiling a child of 11 years or less. The Judge therefore dismissed the appeal and upheld the conviction and sentencing.

Court of Appeal
Still aggrieved, the Appellant lodged a 2 nd appeal. He argued that his sentence should be reconsidered and reduced in line with the Supreme Court’s decision in Muruatetu.

The Court of Appeal referred to Muruatetu 2 (Francis Muruatetu & Another v Republic; Katiba Institute & 5 Others (Amici Curiae) [2021] eKLR) and stated that Muruatetu 2 clarified that the decision in Muruatetu 1 did not invalidate mandatory or minimum sentences in the Penal Code, Sexual Offences Act, or any other Act and that the decision would only apply to sentences imposed in murder cases.

The Court of Appeal in this case held that the mandatory life sentence for the offence of defilement of a child aged 11 or less under section 8(1) as read with 8(2) of the Sexual Offences Act still stands.

Case 2
Paul Gimandu v Republic Criminal Appeal E037 of 2023

Trial Court

The Appellant was apprehended and arraigned in the Chief Magistrate’s Court on a charge of defilement contrary to Section 8(1) and 8(2) of the Sexual Offences Act.

The Court found that the offence of defilement had been proven beyond reasonable doubt. The Appellant was therefore convicted and sentenced to life imprisonment.

High Court
The Appellant lodged an appeal at the High Court at Nairobi and by a judgment dated 2nd June, 2016, the appeal was dismissed by Kimaru, J, who affirmed both conviction and sentence.

Court of Appeal
In arriving at their decision, the Court of Appeal in this matter, in consideration of the sentencing policy guidelines, was of the view that the sentence imposed by the trial court and the High Court ought to be set aside in light of Muruatetu. The Court held that the mandatory minimum sentence as provided for in the Sexual Offences Act is unconstitutional.

The Appeal was therefore partly successful to the extent that the Court of Appeal set aside the sentence to life imprisonment and substituted it with a term of 25 years.

D. ANALYSIS.
The discourse ensuing from the differing decisions of the Court of Appeal is mainly propelled by arguments that in CRIMINAL APPEAL E037 OF 2023, the Court of Appeal did not consider distinguishing precedents and the apex court’s decision in Muruatetu 2.

The issue of the constitutionality of the mandatory minimum sentences has been subject to discussion because the sentencing provisions do not align with the 2010 Constitution. It has been argued that the Sexual Offences Act ought to be contextualised under the former 1963 Constitution, not the current Constitution. The differing positions of the Court on whether the decision in Muruatetu 1 ought to be applied as a blanket applicable law on all matters with mandatory sentencing provisions has been the main point of contention when judicial officers are faced with this issue.Odunga, J (as he then was) was faced with the issue of the constitutionality of the mandatory minimum sentence in Maingi & 5 Others v DPP & Another. In his determination, he cited the judgment in Muruatetu 1 which read as follows: “The right to fair trial is not just a fundamental right; it is one of the inalienable rights enshrined in Article 10 of the UDHR and in the same vein, Article 25(c) of the Constitution of Kenya elevates it to a non-derogable right that cannot be limited or taken away from a litigant.

Section 204 of the Penal Code deprives the Court of the use of judicial discretion. The mandatory nature deprives the courts of their legitimate jurisdiction to exercise discretion not to impose the death sentence in appropriate cases. Where a court listens to mitigating circumstances but has, nonetheless, to impose a set sentence, the sentence imposed fails to conform to the tenets of fair trial that accrue to accused persons under articles 25 of the Constitution; an absolute right. Failure to individualize the circumstances of an offence or offender may result in the undesirable effect of ‘over punishing’ the convict.”

Odunga, J’s interpretation of the decision in Muruatetu 1 is that the decision applies to matters that are similarly placed with mandatory death or mandatory minimum sentences, including robbery with violence and sexual offences. In his determination in Maingi & 5 Others v DPP & Another, Odunga J held that nothing bars a court , upon hearing matters in which mandatory sentences are imposed, from applying the reasoning in Muruatetu 1 in arriving at the same or different determination.

Pravin Bowry, in his article, ‘What Penalty for Sex Offenders?’, wrote on this issue and opined that the mandatory minimum sentences are unjust and unfair because the discretion of judges and magistrates has been taken away. He wrote further that the Sexual Offences Act, and especially the provisions that create the offences and the sanctions, were enacted to deal with the shortcomings of the now repealed sections of the Penal Code to the extent that they:

1. Address the seriousness of sexual offences
2. Promote respect for the law and provide just punishment for the offence
3. Afford adequate deterrence measures to the commission of the vice(s)

It is argued that with the new Constitution and the introduction of the Bill of Rights, the sentencing provisions and processes ought to be aligned to be consistent with the provisions of the 2010 Constitution.

E. CONCLUSION.
As the legal fraternity and the public at large await the Supreme Court of Kenya’s decision on the validity or otherwise of the mandatory minimum sentencing provisions imposed in sexual offences, it is important to note that Courts have discretion, which discretion is fettered by the imposition of statutory provisions for sentences.

Where the statutory provisions are in contravention with the Constitution, the Court is at liberty to declare the law unconstitutional as was found by Lenaola J in Samuel G Momanyi v Attorney General and Another, where he held that the Court can determine whether any statute or parts of it are in conflict with the Constitution. He further held that there certainly is need for all laws to conform with the Constitution as expressly provided for under Article 2(4) of the Constitution.

Sandra Wanjiku and Denzel Ojala are Legal Assistants at Bond Advocates LLP.