By Samantha Oswago
On May 14 this year, Hon Judge David Majanja at the High Court in Meru, Kenya ruled to reduce an accused man’s sentence from life imprisonment to 20 years imprisonment after appeal.
The criminal matter 179 of 2019, Re vs. Lukas Mberia which pertained to Mberia having been accused of defiling a nine year old girl as per section 8(1) of the sexual offences act, was reduced based on a previous judgement by the Supreme Court that had abolished the mandatory minimum sentence i.e. life imprisonment.
This decision has raised great concern among the public. Two pertinent questions that have since arisen.
- Does Judge Majanja’s decision thereby lead to the amendment of section 8(1) of the Sexual Offences Act 2006?
- Is the judgement issued by the Court of Appeal a positive or negative development?
We attempt to address these concerns below.
Amendment of the sexual offences act by the court decision. Is it possible?
A court Judgement cannot directly amend statute. Statute can only be amended by the legislature/parliament. This is through the introduction of a bill containing proposed amendments to the floor of the house. The bill is subsequently taken through several readings after which it is presented for presidential assent.
Was the judgement a positive/negative step?
Basis of the judgement
The appellant’s conviction in this matter was upheld by the appellate court in this instance. That is to mean, he was still found guilty of the crime on which his appeal was pegged on. Secondly it is important to note that the basis for the reduction of minimum sentences as prescribed in the sexual offences act such as in this instance emanates from the rationale raised in Francis Karioko Muruatetu & another –v- Republic SC Petition No. 16 of 2015 whereby the court held that the mandatory death sentence prescribed for the offence of murder by Section 204 of the Penal Code was unconstitutional; as the mandatory nature deprives courts of their legitimate jurisdiction to exercise discretion not to impose the death sentence in an appropriate case; and that a mandatory sentence fails to conform to the tenets of fair trial that accrue to the accused person under Article 25 of the Constitution.
In Christopher Ochieng v Republic KSM CA Criminal Appeal No. 202 of 2011  eKLR the appellant was sentenced to life imprisonment on the basis of the mandatory sentence stipulated by Section 8 (1) of the Sexual Offences Act, however the honored judges opined that if the reasoning in the Supreme Court case(Francis Muruatetu) was applied to the provision, it too should be considered unconstitutional on the same basis and therefore set aside the sentence for life imprisonment imposed and substituted it with a sentence of 30 years’ imprisonment from the date of sentence by the trial court.
Setting aside the mandatory minimum sentence which prescribes imprisonment for life by the Court of Appeal was pegged NOT on the nature of the offence but on the constitutionality of such a sentence. As was established by the Muruatetu case, such ‘life’ sentences are unconstitutional. The key issue to consider is constitutionality.
We are therefore in agreement with Hon Majanja regarding the alternative sentence that was issued. Precedent from the court of appeal so far shows that regardless of the setting aside of life sentences, alternative sentences that are meted out are all for a considerably substantial period of time. In Christopher Ochieng, the sentence was reduced to 30 years. In this particular matter, it was set at 20 years.
Perhaps if there is any issue of concern from our end, it would be that the sentencing period issued as an alternative to the ‘life sentence’ be /remain substantial in order to serve as a deterrent to other would be offenders.
It is in the best interest that even as courts issue sentences, due process and the principles of fair trial as enshrined in the constitution (Article 25) are adhered to. Decisions of the courts must ONLY ever be constitutional.