When courts impose illegal sentences
What you need to know:
- Mr Wagner, of Java Coffee House fame, was in September 2009, sentenced to 15 years in jail. A Nairobi magistrate found him guilty of defiling three girls aged between 13 and 14, in his Lavington home.
- Illegal sentences have also been handed down by two courts in a row on the same case and facts. That’s what happened to Mark Mose, who was accused in a magistrate’s court at Nyamira of defiling and indecently assaulting a six-year-old girl.
Every year, scores of individuals are given illegal sentences. Some of the illegal sentences are revoked on appeal. Others remain in force because the individuals do not know the sentences are illegal.
An illegal sentence is one not authorised by statute. It takes an alert lawyer to catch an illegal sentence. Most litigants cannot afford a lawyer, let alone an alert one. That’s why many illegal sentences are never detected or contested.
Illegal sentences are often passed in cases of child abuse, sexual exploitation, trespass, possession of drugs, robbery (with or without violence), and obtaining money by pretences. But it is in punishing sexual offences that illegal sentences are most common.
It is difficult to see why. As Mr Justice Mohammed Warsame observed in the case of Jon Cardon Wagner v Republic, the Sexual Offence Act “is very clear and categorical as to the sentence to be imposed for a particular offence.”
Mr Wagner, of Java Coffee House fame, was in September 2009, sentenced to 15 years in jail. A Nairobi magistrate found him guilty of defiling three girls aged between 13 and 14, in his Lavington home. He appealed and requested bail pending the hearing of the appeal.
Granting him bail, Mr Justice Warsame questioned why, among other things, the magistrate had sentenced him to 15 years after she had amended the charges to provide for 20 years imprisonment. Mr Wagner went on to win the appeal. The sentence was quashed and he was set free.
SUBSTITUTE RULING
Discovering an illegal sentence doesn’t always mean walking away scot-free. The court may, instead, order a new trial or substitute the illegal sentence with a legal one.
Take the case of David Khisa. He was convicted for defiling an eight-old-child by an Eldoret magistrate and he was sentenced to 15 years imprisonment, but he appealed to the High Court at Eldoret.
Mr Justice George Kimondo found the magistrate had erred. The minimum sentence for the offence of defilement of a child of 11 years and below is life imprisonment.
He set aside the sentence and substituted it with life imprisonment. For Mr Khisa, it was like jumping out of the frying pan into the fire. Sometimes, it is better to keep silent.
Illegal sentences have also been handed down by two courts in a row on the same case and facts. That’s what happened to Mark Mose, who was accused in a magistrate’s court at Nyamira of defiling and indecently assaulting a six-year-old girl.
Mose then appealed to the High Court, which dispensed another illegal sentence. He was set free by the Court of Appeal, which commented:
“We must record our displeasure at the way this matter was handled which may very well mean that a person who might have committed an offence has to be released all because the two courts below paid very little attention to the legal principles that would have ensured justice to all. We hope and trust that hereafter more care will prevail.”
