[2019] KEHC 2235 (KLR)
The court found that although the appellant was a first offender and had served about one and a half years in jail, the offence was serious, involving a 17-year-old victim who became pregnant. The appellant, being 31 years old and a neighbor to the victim, should have known better and acted responsibly. The court...
Source-derived case information.
- Citation
- [2019] KEHC 2235 (KLR)
- Parties
- Appellant: Clarkman Otieno Okinda; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 19 of 2018
- Procedural Posture
- Criminal Appeal / Resentencing After Appeal Against Conviction and Sentence
- Outcome
- Appeal against sentence partially allowed; sentence substituted with 10 years imprisonment from date of arrest.
- Judges
- RE Aburili
- Legal Topics
- Sentencing Principles, Sexual Offences, Mitigation, Victim Impact, First Offender
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Clarkman Otieno Okinda
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Resentencing After Appeal Against Conviction and Sentence
Legal Issues
- 1 Whether the sentence imposed by the trial court was appropriate in light of the circumstances and mitigation.
- 2 Whether the court should interfere with the minimum mandatory sentence imposed on the appellant.
Ratio Decidendi
The court found that although the appellant was a first offender and had served about one and a half years in jail, the offence was serious, involving a 17-year-old victim who became pregnant. The appellant, being 31 years old and a neighbor to the victim, should have known better and acted responsibly. The court noted the lack of remorse as the appellant denied the offence throughout. However, relying on the authority of Jared Koita Injiri v Republic [2019] eKLR, the court exercised its discretion to interfere with the minimum mandatory sentence and substituted it with a prison term of 10 years, to be calculated from the date of arrest and custody. The appeal against sentence succeeded...
Court Disposition
Appeal against sentence partially allowed; sentence substituted with 10 years imprisonment from date of arrest.
Orders
- The appellant's sentence is substituted with a prison term of 10 years to be calculated from 8.7.2017, the date of arrest.
- Appeal against sentence succeeds to the extent of resentencing only.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT SIAYA
CRIMINAL APPEAL NO. 19 OF 2018
CLARKMAN OTIENO OKINDA...............APPELLANT
VERSUS
REPUBLIC..................................................RESPONDENT
(Being an appeal against conviction and sentence of Bondo PMCCR No.27 of 2019 dated 9. 3.2019 before Hon. M. Obiero – P.M.)
RESENTENCING
1. On 9. 10. 2019 this Court delivered judgment upholding the Appellant’s Conviction by the trial Court.
2. On sentence, the Court ordered for a Social inquiry report after hearing mitigation by the Appellant. I also ordered for a victim impact statement.
3. However, the Probation Officer despite noting the file on 9. 10. 2019 has not availed any report on the Appellant. That notwithstanding, this Court is not bound by any report by the Probation Officer.
4. I have considered the fresh mitigations by the Appellant and the address by the Prosecution Counsel where he opposed the reduction of sentence. The Appellant is a first offender but the offence is traumatizing to the victim of the crime.
5. I also note that the Appellant has denied the offence throughout the trial and on appeal. I have considered the circumstances under which the offence was committed. The victim was a 17 year old child who became pregnant. The Appellant is her neighbour.
6. The Appellant is 31 years old and therefore ought to have known that a 17 year old cannot give consent to sexual intercourse. He has a family and he ought to have been more responsible and avoided committing such offence.
7. The 17 year old has been left to fend for a child because of being preyed upon by the adult sex pest. Deterrent sentence was called for but the Appellant was given minimum mandatory sentence. He has now served about 1 and half years in jail. On the authority of Jared Koita Injiri v Republic [2019]e KLR,I would exercise discretion and interfere with the sentence and substitute it with a prison term of 10 years to be calculated from the date when the Appellant was arrested and taken into custody on 8. 7.2017.
8. The appeal against sentence therefore succeeds to that extent only.
Dated, Signed and Delivered at Siaya this 11th day of November, 2019.
R.E. ABURILI
JUDGE
In the presence of:
The Appellant in person
Mr. Okachi Senior Principal Counsel for the Respondent
CA: Brenda and Modestar