[2020] KEHC 3260 (KLR)
The court found that the imposition of a mandatory life sentence under section 8(2) of the Sexual Offences Act removed judicial discretion and could be inconsistent with the right to a fair trial as enshrined in Article 50 of the Constitution. Citing Court of Appeal decisions, the judge held that courts must have...
Source-derived case information.
- Citation
- [2020] KEHC 3260 (KLR)
- Parties
- Appellant: Daniel Nyamuswa Ogwoka; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Constitutional Petition 24 of 2020
- Procedural Posture
- Constitutional Petition / Judgment
- Outcome
- life sentence set aside; substituted with 30 years' imprisonment from original sentencing date
- Legal Topics
- Defilement Sentencing, Mandatory Minimum Sentences, Fair Trial Rights, Judicial Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Daniel Nyamuswa Ogwoka
Appellant
Republic
Respondent
Procedural Posture
Constitutional Petition / Judgment
Legal Issues
- 1 Whether the mandatory life sentence for defilement under section 8(2) of the Sexual Offences Act is unconstitutional for removing judicial discretion.
- 2 Whether the petitioner was denied a fair hearing on sentencing contrary to Article 50 of the Constitution.
- 3 Whether the circumstances of the offence warrant a re-sentencing.
Ratio Decidendi
The court found that the imposition of a mandatory life sentence under section 8(2) of the Sexual Offences Act removed judicial discretion and could be inconsistent with the right to a fair trial as enshrined in Article 50 of the Constitution. Citing Court of Appeal decisions, the judge held that courts must have discretion to impose sentences that are proportionate to the circumstances of each case. However, given the gravity of the offence—defilement of a six-year-old child—the court determined that a lengthy custodial sentence was still warranted. The life sentence was set aside and substituted with a term of thirty years' imprisonment, to run from the original date of sentencing by...
Court Disposition
life sentence set aside; substituted with 30 years' imprisonment from original sentencing date
Orders
- The life sentence imposed on the applicant is set aside.
- The applicant is sentenced to thirty (30) years' imprisonment from 24th October 2012.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KISII
CONSTITUTION PETITION APPLICATION NO. 24 OF 2019
DANIEL NYAMUSWA OGWOKA..............................................PETITIONER
VERSUS
REPUBLIC..................................................................................RESPONDENT
JUDGMENT
1. Daniel Nyamuswa Ogwokafiled a petition on the 25th September 2019 seeking an order for sentence re-hearing and sentencing. The petitioner was convicted of the charge of defilement contrary to section 8 (1) (2) of the Sexual Offences Act No. 3 of 2006 and was sentenced to life imprisonment. His appeal in HCCRA No. 16 of 2015 was dismissed on the 15/6/2016.
2. He avers that he was not accorded a fair hearing of sentencing thus contravening Article 50 (1), (2) (q) of the Constitution.
3. Mr. Otieno for the State did not oppose the application. The applicant informed the court that he has been in jail from 2012, he has reformed. That he had a wife who threw herself in the river and that their children are all alone. That he seeks to be released to go and look after the children. That he has passed tailoring courses and bible classes and that he is also epileptic.
4. The applicant was charged with the offence of defilement at the SRM’s court in Kilgoris. His case was heard and he was convicted and sentenced to life imprisonment as per the provisions of section 8 (20 of the Sexual Offences Act No. 3 of 2006. The trial court noted that the subject was 6 years old. The applicant’s appeal was dismissed by the High Court in HCCRA No. 16 of 2015.
5. The decisions of the Court of Appeal in the case of Christopher Ochieng – v- R [2018] eKLR Kisumu Criminal Appeal No. 202 of 2011 and in Jared Koita Injiri – v- R, Kisumu Criminal Appeal No. 93 of 2014 are to the effect that mandatory minimum sentences take away the judicial discretion to impose a sentence commensurate with the circumstances of a particular case.
6. However, taking into account the specific circumstances of this case that the subject was 6 years old a very young child and the court of appeal decision in the case of ChristopherOchieng vs Republic (supra) where the subject was 9 years old I set aside the life sentence and sentence the applicant to serve (thirty) 30 years’ imprisonment from the date of sentence by the trial court 24th October 2012.
Dated, signed and delivered at KISII this 21st day of July 2020
R.E.OUGO JUDGE
In the presence of:
Applicant In person
Mr. Otieno Senior Prosecution Counsel Office of the DPP
Rael Court Assistant.