Court Makes Landmark Ruling On All Sexual Offenders

The High Court in Mombasa on Friday, September 2 handed a lifeline to individuals jailed for sexual offences across the country.

Justice John Mativo had issued orders directing that persons convicted and imprisoned over sexual offences are free to Petition the High Court for mitigation and re-sentencing.

In his ruling at the High Court in Mombasa, the judge declared that sentencing of the offenders remains a discretionary power, exercisable by the court and involves the deliberation of the appropriate sentence.

He added that those who have been convicted can petition the High Court so that it gives orders of the rehearing of a sentence.

The High Court in Mombasa. /THE STAR

“Having considered the issues raised in this petition, the orders that commend themselves to me and which I hereby grant are as follows, to the extent that the Sexual Offences Act prescribe minimum mandatory sentences, with no discretion to the trial court to determine the appropriate sentence to impose, such sentences fall foul of Article 28 of the Constitution,” said Justice Mativo as quoted by the Nation.

In 2006 The Sexual Offences Act was enacted after a great and animated debate spearheaded by various women organisations and orchestrated mainly by female MPs in the Parliament. New legal definitions were created and mandatory and harsh penalties provided.

The Penal Code was amended and offences of rape; sexual assault; compelled or induced indecent acts; indecent acts committed in view of a family member; defilement; gang rape; indecent act with a child or adult; promotion of sexual offences with a child; child trafficking; child sex tourism; child prostitution, and pornography were crafted.

Section 38 of the Sexual Offences Act states that "Any person who makes false allegations against another person to the effect that the person has committed an offence under this Act is guilty of an offence and shall be liable to punishment equal to that for the offence complained of."

On September 24, 2021, the Directorate of Criminal Investigations (DCI) cautioned members of the public who are reporting rape cases.

“This is to advise members of the public that rape is a very serious offence under the sexual offences act and as such it attracts a heavy penalty of up to life in prison,” stated the DCI at the time.

The investigative agency added that while victims of any form of sexual abuse are encouraged to make their reports for immediate action, the reports should not however be false or aimed at getting back against those accused.

The warning came in the backdrop of a case whereby a woman named Mercy was believed to have falsely accused her area chief of forcing himself on her after her husband discovered that the two have been having a clandestine sexual affair since August.

In a case lodged at Londiani Police Station on Tuesday afternoon, the woman from Kimasian location who was accompanied by her husband alleged that the area chief had stormed her homestead earlier in the day and ordered her out of the house. She further alleged that when she obliged, the chief then forced her into a nearby maize plantation where he raped her repeatedly.

Detectives launched immediate investigations into the allegations against the local administrator who had since been detained. They discovered that Mercy and the Chief had indeed been in a relationship and for a period of time, they had been exchanging messages on SMS.

According to investigations, on the day the chief is alleged to have forced himself on Mercy, the two were in constant communication and had agreed to meet at their usual place

The secret messages that included mobile money transactions and others dating as far back as August had reached Mercy’s husband who discovered that his wife had been secretly having steamy encounters with the chief in a nearby maize plantation, that provided perfect cover for their illicit activities.

Officers outside the DCI headquarters along Kiambu Road. /DCI

In order to get back at the chief, Mercy was compelled to file a trumped-up report against him, in a case that has attracted a lot of interest in Cheptagulgei village.

However, after detectives conducted their detailed analysis and investigations including a visit to the alleged scene of the incident, they discovered that Mercy’s claims were inconsistent and not supported by facts at the scene.

The investigators also retrieved the mobile money transactions detailing how the woman had been receiving money from the chief after every illicit encounter they had since August.

"These among other revelations in the possession of our detectives, including how the woman’s husband tried to lay a trap for the chief by luring him to meet with his wife seriously cast doubt on the woman’s allegations that the Chief had indeed brutally dragged her into the maize plantation and forced himself on her," added the DCI.