The Supreme Court of Kenya has ruled that Joshua Gichuki Mwangi, goes back to jail after his sentence was reduced by the Court of Appeal
Joshua was arraigned before the Senior Principal Magistrate’s Court at Karatina on March 11, 2011, and charged with defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act.
He was also charged with an alternative count of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act.
Further, in On October 17, 2011, the trial court found the Respondent guilty as charged on the main count and sentenced him to twenty (20) years imprisonment.
However, the sentence was later overturned by the Court of Appeal, setting aside the 20-year sentence and substituting it with a 15-year sentence running from the time that the trial court imposed its sentence.
The Supreme court has ruled that the convict goes back to jail and serves the minimum mandatory sentence which had been served by the High Court.
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DPP Appeals the 15-year Sentence
According to the Supreme court ruling, Joshua was found guilty of defiling a 15-year-old girl.
The decision of the court of appeal to sentence the convict to 15 years instead of 20 was appealed by the Director of Public Prosecutions (DPP).
Furthermore, the DPP argued that the court violated the principle of stare decisis, and erred in holding that minimum mandatory sentences offend the doctrine of separation of powers.
Additionally, the DPP argued that the court of appeal erred in holding that minimum mandatory sentences deprive judicial officers the power to exercise judicial discretion; and erred in holding that the meting out of minimum mandatory sentences contravenes an accused person’s right to a fair trial.
He asked that the supreme court issues an order setting aside the judgment of the Court of Appeal.
“A declaration that the imposition of minimum mandatory sentences under the Sexual Offences Act does not undermine judicial discretion of trial courts.
“A declaration that the imposition of mandatory minimum sentences under the Sexual Offences Act is constitutional and is also in compliance with Articles 25, 27, 28 and 50 of the Constitution,” stated the DPP.
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Supreme Court Explains Decision
Consequently, the Supreme court determined that the Judges of the Court of Appeal “acted ultra vires and without jurisdiction by assuming original jurisdiction on constitutional matters which were not raised at the High Court while canvassing the minimum mandatory sentences question.”
Additionally, it determined that the learned judges of the Court of Appeal violated the principle of stare decisis.
“I departing from the decision on minimum mandatory sentences for sexual offences as stated in Muruatetu & Another v Republic; Katiba Institute & 4 others (Amicus Curiae) (Petition 15 & 16 of 2015) [2021] KESC 31 (KLR) (the Muruatetu Directions),
“The learned judges of the Court of Appeal violated the principle of stare decisis,” added the ruling.
Further, the court determined that mandatory minimum sentences do not deprive judicial officers of the power to exercise judicial discretion and that “the Respondent who had been released should serve the remainder of his sentence from the date of conviction by the trial court.
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