Republic v Mulu (Sexual Offence 2 of 2020) [2025] KEMC 12 (KLR) (6 February 2025) (Ruling)

Key Facts

Issues

• The court examined if the mandatory life imprisonment under Section 8(2) of the Sexual Offences Act for defilement of a minor (as in Manyeso Vs. Republic [2023] KECA 827) was constitutional, particularly in light of the High Court's 2024 ruling that such sentences can be discriminatory and violate Article 25(a) (dignity) and Article 29(f) (prohibition of inhuman treatment) of the Constitution.
• The court analyzed the constitutionality of Section 167(1) of the Criminal Procedure Code, which mandates detention of mentally ill convicts in prisons. Citing cases like Yussuf Hassan [2016] eKLR and Joseph Mekelino Katula [2017] eKLR, the court concluded that such detention violates Articles 25(a) and 29(f) of the Constitution, as it subjects mentally ill individuals to cruel treatment without access to healthcare.
• The court addressed the sentencing of Daniel Mulu, who is mentally ill and on medication, requiring compliance with constitutional rights under Articles 25(a) and 29(f). The issue centered on whether a custodial sentence was appropriate given his mental condition, the family's willingness to support non-custodial rehabilitation, and the High Court's 2024 directive to review the life imprisonment as inhumane.

Holdings

• The court determined that custodial sentences for mentally ill offenders violate constitutional rights under Articles 25 and 54, emphasizing the need for treatment over imprisonment to protect dignity and ensure rehabilitation.
• The trial court was directed to resentence the accused based on updated sentencing guidelines and case law, prioritizing non-custodial options with medical supervision and community reintegration.
• The court upheld the conviction for defilement under Section 8(1) of the Sexual Offences Act but set aside the life imprisonment sentence as discriminatory and inhumane. The High Court ordered re-sentencing, directing the accused to be placed in a mental health facility until certified non-dangerous to society or himself.

Remedies

• The accused person is to be escorted to a mental health facility for treatment and remain there until certified not a danger to society or himself. Upon certification, he will be handed over to his family for supervised care.
• The High Court's appeal against conviction was dismissed, but the appeal against the life imprisonment sentence was upheld. The case was remanded for re-sentencing in accordance with constitutional protections for persons with disabilities.
• A new pre-sentence report was directed to be filed by the probation officer within 30 days, and the court must consider it before resentencing the accused.

Legal Principles

• The court applied constitutional provisions including Article 54 (dignity of persons with disabilities), Article 28 (inherent dignity), Article 29(f) (prohibition of cruel treatment), and Article 25(a) (freedom from torture). These were used to declare Section 167 of the Criminal Procedure Code unconstitutional for detaining mentally ill offenders in prison, violating their rights to humane treatment and dignity.
• The court emphasized adherence to the doctrine of stare decisis under Article 162(7) of the Constitution, noting that all courts except the Supreme Court are bound by its decisions. This principle was referenced in applying precedents from recent Supreme Court rulings on mandatory versus minimum sentencing under the Sexual Offences Act.

Precedent Name

• Wakesho Vs. Republic
• Republic Vs Kagua & Another
• PMM Vs Republic
• Joseph Mekelino Katula Vs. Republic
• Hassan Yussuf Vs. Republic
• Kimaru & 17 Others Vs. Attorney General
• Republic Vs. Murangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 Others (Amicus Curie)

Cited Statute

• Sexual Offences Act No. 3 of 2006
• Criminal Procedure Code

Judge Name

• P. Mayova
• Francis Olel
• L.K. Mwendwa

Passage Text

• (a) That the accused person be escorted forthwith to a mental health facility for his medical treatment. (b) That the accused person shall remain under treatment until such a time a qualified health personnel certified that he is not a danger to the society and/or himself.
• "Mandatory sentences leave trial court with absolutely no discretion, the singular sentence is already prescribed by the law. Minimum sentences however set the floor rather than the ceiling when it comes to sentence. What is prescribed is the least severe sentence a court can issue, leaving it open for them to the discretion of the courts to impose a harsher sentence...."
• "A sick persons place is at the hospital and not in prison. I find Section 167 of the Penal Code discriminative to people with mental illness for describing detention to be in a prison. Instead of a health facility and for detention to the indeterminate. This offends Articles 25 and 29(f) of the constitution"