For the last 12 years, Emmanuel Fundi has known Shimo la Tewa G.K prison as his home.
Following his arrest in 2010 over the offence of defiling a 12-year-old minor and his subsequent conviction to life imprisonment, Fundi is among 391 defilement inmates at Shimo La Tewa GK Prison since January 2021.
But on September 2, 2022, a Court of Appeal judgment declared mandatory sentences imposed under the Sexual Offences Act unconstitutional and illegal giving Fundi a huge reprieve.
“A declaration is and hereby issued that the impugned minimum sentence is discriminatory in nature because they give differential treatment to a convict under the impugned provisions distinct from the kind of treatment accorded to convicts under other offenses which do not impose mandatory sentences, so mandatory minimum sentences violate an accused’s right under Article 27 of the constitution,” Judge John Mativo declared.
Sentence appeal
This judgment came when Fundi was considering appealing his sentence after serving six years.
“I had resigned to my fate. I knew I would die here since I failed to raise my bond. I feel the judgment is timely for me to undergo retrial and allow the magistrate to look into the gaps and circumstances that led to my conviction,” he said.
He then stared at his handwritten notes, notes he holds dearly to his life, before breaking the long silence.
“I feel like I have begun living again. When the judgment was delivered, we cut Ugali to celebrate and welcome the news, in our small ways. I’m now in the process of asking for a retrial at the Mombasa Chief Magistrate court.
“I feel I’m at liberty to introduce new evidence that the trial court ignored, and my hope and prayer is that the case will not drag on for many years,” Fundi said.
He adds that he is now advocating for all sexual offenders at the facility to begin the process of seeking a retrial.
In Fundi’s handwritten notes, he still denies having defiled the 12-year-old minor and maintains his innocence; claiming he was framed on the defilement charges after he sought to end his relationship with the mother of the victim.
“I still have hopes. I now believe in the retrial process. Let the court relook at the circumstances under which I was convicted. There are a lot of gaps in my trial. I hope to find a probono lawyer who can now piece together all the gaps in my case,” Fundi said.
He all along avoids mentioning his victim who in the victim impact assessment report before the court, the complainant narrated to the court how his stepfather sexually molested her for two years before she revealed to her mother what had been going on whenever her mother left for work.
The now 18-year-old victim sat for her KCSE exams last year and says that she is yet to heal from the ordeal that she underwent at the hands of a man whom she expected would protect her.
Amidst sobs, she reveals that she had to undergo reconstructive surgery, and that, to her, it has become a daily reminder of what she underwent in her childhood.
The move to have sexual offenders undergo retrial brings back a chapter that she wishes never took place in her life, an occurrence that she would never wish even on her worst enemy.
“I have been working on my healing process for so many years. Someone took and stole my innocence and I felt robbed of my childhood. This is one chapter of my life that I want closed.
“My scars are a daily reminder that I was defiled by someone I trusted and it harbours a lot of mixed reactions over the recent judgment,” she said.
She points out that as the main complaint in the case, she is not ready to appear before the court and testify in case she is recalled as the main witness.
“I don't want to undergo what I went through before the court while trying to prove to the world that this man stole my younger years when I moved to court for five years looking for justice.
“I want to have the matter buried forever. I want to begin living my life like any other girl my age,” the teary victim said.
Contrary to the victim’s words, Fundi believes that his conviction is a result of bad blood between his estranged lover and his stepdaughter, insisting that he is ready to fight in order to be free again.
"My stepdaughter has a right to express her feelings towards the judgment, but I’m entitled to undergo retrial and the court to consider evidence tabled in the retrial court. I don't know how long it will take however I have renewed my faith to be resentenced. I feel lucky and my family is working on getting a good lawyer to argue my case,” he said.
Former Mombasa Law Society chairperson Matthews Nyabena has welcomed the move to have convicted sexual offenders undergo retrial.
“In my honest opinion, I think the judgment is a reprieve to sexual offenders considering the circumstances, and the age of some of the suspects undergoing trial or convicted over the sexual offenses,” Nyabena said.
On his part, Director of Public Prosecutions Noordin Hajii says he is aggrieved by the appellate court’s finding.
“The intended appeal is a matter of public interest since it has huge implications,” he said.
Hajji noted that the decision by the court of appeal has led to chaos, confusion, and uncertainty in the determination of sexual offenses with 8743 cases undergoing trial likely to be affected.
However, a non-governmental organization has welcomed the judgment, arguing that the mandatory sentences imposed on sexual offenders were punitive to the suspects in such cases.
Ujamaa Centre Networking and Advocacy officer Grace Oloo states that judicial officers involved in such cases should be allowed discretion to consider the circumstances under which the offenses took place.
“We truly laud the move to have the sexual offenders undergo trial. It’s on humanitarian grounds that each suspect under the Sexual Offenses Act, should be tried considering the scenario, and evidence in such cases rather than imposing a sentence on the mandatory requirement without considering the circumstances,” she said.
