[2024] KEHC 14329 (KLR)
The court found no basis to interfere with the sentence previously imposed and upheld on appeal. The applicant had already benefited from a term sentence rather than the mandatory life sentence prescribed by law. The court held that the applicant's arguments regarding time spent in remand and his conduct did not...
Source-derived case information.
- Citation
- [2024] KEHC 14329 (KLR)
- Parties
- Applicant: Dickson Olwande Abana; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 92 of 2023
- Procedural Posture
- Miscellaneous Criminal Application / Sentence Review After Conviction and Appeal
- Outcome
- application dismissed
- Judges
- RE Aburili
- Legal Topics
- Defilement, Sentence Review, Sexual Offences Act, Mandatory Minimum Sentences
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Dickson Olwande Abana
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Sentence Review After Conviction and Appeal
Legal Issues
- 1 Whether the sentence imposed on the applicant for defilement should be reviewed in light of time spent in remand and the applicant's conduct.
- 2 Whether Section 333(2) of the Criminal Procedure Code requires further reduction of the sentence.
- 3 Whether the Supreme Court's clarification in Francis Muruatetu & Another v Republic affects the applicant's sentence.
Ratio Decidendi
The court found no basis to interfere with the sentence previously imposed and upheld on appeal. The applicant had already benefited from a term sentence rather than the mandatory life sentence prescribed by law. The court held that the applicant's arguments regarding time spent in remand and his conduct did not warrant a further reduction of sentence, especially in light of the Supreme Court's clarification that mandatory minimum sentences under the Sexual Offences Act are constitutional. The application for sentence review was therefore dismissed as devoid of merit.
Court Disposition
application dismissed
Orders
- The application for sentence review by Dickson Olwande Abana is dismissed.
- This file is closed.
Full Case Text
Judgment text and source record
25 paragraphs
Abana v Republic (Miscellaneous Criminal Application 92 of 2023) [2024] KEHC 14329 (KLR) (8 November 2024) (Ruling)
Neutral citation: [2024] KEHC 14329 (KLR)
Republic of Kenya
In the High Court at Siaya
Miscellaneous Criminal Application 92 of 2023
RE Aburili, J
November 8, 2024
Between
Dickson Olwande Abana
Applicant
and
Republic
Respondent
Ruling
1. The Applicant is Dickson Olwande Abana. He was convicted vide Bondo SPM Sexual Offences Case No. E001/2022 for the offence of defilement contrary to Section 8 (1) as read with Section 8(2) of the Sexual Offences Act. The defiled child was aged 5 years. He was sentnced to serve 70 years imprisonment on 9/9/2022.
2. On appeal before this court vide HCRA E029/2022, this court affirmed the conviction and sentence imposed, after dismissing his appeal on 4/4/2023.
3. The convict is back again seeking for sentence review in the interest of justice, that he is now law abiding and that the period spent in remand custody should be considered.
4. I have considered the application for sentence review dated 18/7/2023, the submissions by the convict and the opposing submission by the Respondent /State filed on 10/6/2024.
5. The convict was sentenced to a term sentence after mitigation which was considered and this court upheld the sentence imposed, considering the mandatory sentence of life imprisonment under Section 8 (2) of the Sexual Offences Act, which he was spared.
6. That being the case, I find no basis to interfere with the sentence upheld on appeal.
7. On Section 333 (2) of the Criminal Procedure Code, the convict had the opportunity to seek for the court’s intervention on appeal. Furthermore, the convict already benefited from a term sentence then, which he would not get, if it were today, following the clarification by the Supreme Court in the Francis Muruatetu & Another Vs. Republic Case that the mandatory minimum sentence under the Sexual offences Act are lawful and constitutional.
8. For the above reason, I find the application by the convict Dickson Olwande Abana to be devoid of any merit and the same is hereby dismissed.
9. Signal to issue.
10. This file is closed. I so order.
DATED, SIGNED AND DELIVERED AT SIAYA THIS 8THDAY OF NOVEMBER, 2024R. E. ABURILIJUDGE