A Busia man who defiled a six-year-old girl escaped life imprisonment after a judge relied on the Muruatetu decision and instead imposed a 40-year sentence against him.
Erick Maina Mbulele had been sentenced under section 8(1)(2) of the Sexual Offences Act, No 3 of 2006, which attracts, upon conviction, a penalty of mandatory life imprisonment. The trial court imposed the sentence, on August 22, 2011. His appeals, to the High Court and Court of Appeal, against the conviction and sentence, were not successful.
He applied to the High Court seeking a re-visit of the mandatory sentence.
In reducing the sentence, Justice William Musyoka noted that Mbulele’s application, no doubt rode on the 2017 unanimous Supreme Court decision in Francis Karioko Muruatetu & another vs Republic, where the court appeared to lay down a general principle that all mandatory sentences were unconstitutional, and to allow trial and appellate courts discretion to re-visit cases where mandatory sentences had been imposed, with a view to revising or reviewing them.
Though the Supreme Court has since re-visited the case and clarified that its decision was of application only in murder cases, and not any other, Justice Musyoka noted that the current jurisprudence points to entertainment and tolerance of applications for review of sentence, where the trial court imposed a mandatory sentence, in circumstances where the law did not allow any discretion.
“The trend is, no doubt, in line with the progressive provisions of the Constitution of Kenya of 2010. The offence, that the petitioner was convicted in respect of, attracts a mandatory sentence. The principle laid out in Francis Karioko Muruatetu & another vs Republic  eKLR (Maraga CJ&P, Mwilu DCJ&VP, Ojwang, Wanjala, Njoki & Lenaola, SCJJ), declaring mandatory sentences unconstitutional, was restated and reiterated in Philip Mueke Maingi & others vs Director of Public Prosecutions & another Machakos HC Petition No E017 of 2021 (Odunga, J) and Edwin Wachira & 9 others vs Republic Mombasa HC Petition No 97 of 2021 (Mativo, J) with respect to offences under the Sexual Offences Act. I will be guided by the above decisions in the review that I am just about to undertake,” he ruled on July 17.
The judge determined the case without having the benefit of the original records from the trial and appellate courts after efforts to locate these files from the Kisumu Court of Appeal court registry and the Busia High Court registry, where the appeals were filed, proved futile.
However, he had a copy of the complete record of the typed proceedings and judgment of the trial court in Busia, and a photocopy of the judgment of the Busia High Court.
“There is some evidence that an appeal was filed at the Court of Appeal, in Kisumu but I do not have, before me, a copy of the judgment of that court, if at all the appeal lodged there was determined. All I have is an averment by the petitioner, that his appeal, at the Court of Appeal, was not successful. The petition and application, dated July 13, 2022, principally seek re-sentencing,” he added.
He noted that since mandatory sentences have been pronounced unjust and unconstitutional, by the High Court, Court of Appeal and the Supreme Court, the sentence imposed on Mbulele was no longer tenable and proceeded to set it aside.
But Justice Musyoka noted that the offence of defilement of a minor of tender years is a felony, so grave that Kenya assigned to it the mandatory penalty of life in prison, to underscore how heinous and abhorrent it is.
He said the consequences of it are a lifetime of trauma for the minor victim.
“A deterrence sentence is called for, and imprisonment would be the most ideal, to keep the offender away from the society, to deter him and secure the community, and to give him an opportunity to reform and to be rehabilitated,” Justice Musyoka ruled.
He cited a case involving another suspect, Julius Kitsao Manyeso who had defiled a minor, aged only four and a half years, where Court of Appeal Judges Pauline Nyamweya, Jessie Lesiit and George Odunga sitting in Malindi substituted the sentence of life imprisonment with a definite term of imprisonment of 40 years.
In the case against Mbulele, the minor was aged 6, according to a birth certificate produced in court by her grandmother.
It indicated that the minor was born on November 15, 2003, which meant that she was six years and several months old as at May 12, 2010, when the offence was committed.
“The complainant was a child of tender years. Consequently, I shall, guided by Julius Kitsao Manyeso vs Republic Malindi CACRA No 12 of 2021 (Nyamweya, Lesiit & Odunga, JJA), hereby, impose an imprisonment sentence on the petitioner of 40 years,” the judge ruled.
He added that the time spent in custody shall be reckoned in the calculation of sentence since although he had been granted bond, he never got to process it, and he remained in remand custody throughout his trial.