[2006] KEHC 3139 (KLR)
The court held that while the sentence of 10 years imprisonment may appear harsh, it was not excessive given the gravity of the offence, the deliberate and calculated manner in which it was committed, and the youthful age of the complainant. The appellant's age, health, and first offender status were not sufficient...
Source-derived case information.
- Citation
- [2006] KEHC 3139 (KLR)
- Parties
- Appellant: Elijah Okwako; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 399 of 2004
- Procedural Posture
- Criminal Appeal / Appeal Against Sentence
- Outcome
- appeal dismissed
- Judges
- CJ Kendagor
- Legal Topics
- Sentencing Principles, Unnatural Offence, Mitigation, First Offender, Plea of Guilty
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Elijah Okwako
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Appeal Against Sentence
Legal Issues
- 1 Whether the sentence of 10 years imprisonment for the offence of unnatural offence was harsh and excessive.
- 2 Whether the appellant's age, health, and status as a first offender justified reduction of sentence.
Ratio Decidendi
The court held that while the sentence of 10 years imprisonment may appear harsh, it was not excessive given the gravity of the offence, the deliberate and calculated manner in which it was committed, and the youthful age of the complainant. The appellant's age, health, and first offender status were not sufficient grounds to interfere with the sentence imposed by the lower court. The appellate court found no justification to reduce the sentence and dismissed the appeal against sentence.
Court Disposition
appeal dismissed
Orders
- The appeal against sentence is dismissed.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS)
Criminal Appeal 399 of 2004
ELIJAH OKWAKO………..…....................................….………….………….…..APPELLANT
VERSUS
REPUBLIC…………………… ………………...........................………….…....RESPONDENT
J U D G M E N T
The Appellant ELIJAH OKWAKO pleaded guilty to the charge of UNNATURAL OFFENCE contrary to Section 262(a) of the Penal Code. He was convicted and sentenced to serve 10 years imprisonment. He has lodged his appeal against sentence. He urged court to reduce the sentence on grounds that it was harsh and excessive. He submitted that he was 63 years old and therefore very old and ailing due to the strenuously hard conditions of prison. He urged the court to consider he was a first offender a fact the learned trial magistrate ignored and that he was remorseful.
MR. MAKURA opposed the appeal on behalf of the State. Learned counsel submitted that the offence carried a maximum sentence of 21 years and that 10 years imprisonment was lenient. He urged the court to dismiss this appeal.
I have carefully considered this appeal. The learned trial magistrate wanted the Appellant to give his mitigation after entering a conviction upon the guilty plea. The Appellant opted to say nothing. I have considered what he has said before me. The Appellant’s plea for reduction of the sentence is based on his age and the inconveniences he is going through while in remand. Those are not good grounds to justify this court to interfere with the sentence imposed by the lower court. Learned state counsel submitted that the sentence of 10 years imprisonment was lenient considering the child’s age. In addition to the youthful age of the Complainant, I considered that the offence was well calculated and deliberate. The Appellant took trouble to lure the Complainant to himself before forcefully taking him into the farmland where he sodomised him. The Complainant was rescued by members of public who heard his screams.
Having conspired all these factors, I find that the sentence may have been harsh but it was not excessive as to justify interference by this court. The appeal against sentence is therefore dismissed.
Dated at Nairobi this 22nd day of March 2006.
…………………………
LESIIT, J.
JUDGE
Read, signed and delivered in the presence of;
Appellant - present
Mr. Makura for the State
CC: Huka
…………………………
LESIIT, J.
JUDGE