[2019] KEHC 2318 (KLR)
The court found that, while the offence of defilement committed by the appellant against a 6-and-a-half-year-old child was grave and merited a severe sentence, the appellant's advanced age of 66 years made life imprisonment unduly harsh and indefinite. The absence of a social inquiry report or victim impact...
Source-derived case information.
- Citation
- [2019] KEHC 2318 (KLR)
- Parties
- Appellant: Erastus Omwonya Madowo; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 85 of 2017
- Procedural Posture
- Criminal Appeal / Resentencing After Dismissal of Appeal Against Conviction
- Outcome
- Appeal against sentence allowed to the extent that the sentence is reduced to 8 years imprisonment.
- Judges
- RE Aburili
- Legal Topics
- Defilement, Sentencing Principles, Resentencing, Victim Impact, Mitigation, Custodial Sentences
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Erastus Omwonya Madowo
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Resentencing After Dismissal of Appeal Against Conviction
Legal Issues
- 1 Whether the sentence of life imprisonment imposed on the appellant was appropriate given his age and the circumstances of the offence.
- 2 Whether the appellant's mitigation and lack of social inquiry or victim impact report should affect the resentencing.
Ratio Decidendi
The court found that, while the offence of defilement committed by the appellant against a 6-and-a-half-year-old child was grave and merited a severe sentence, the appellant's advanced age of 66 years made life imprisonment unduly harsh and indefinite. The absence of a social inquiry report or victim impact statement did not preclude the court from exercising its discretion. The court determined that an 8-year custodial sentence, calculated from the date of conviction, was appropriate to balance the gravity of the offence, the need for societal protection, and the appellant's personal circumstances.
Court Disposition
Appeal against sentence allowed to the extent that the sentence is reduced to 8 years imprisonment.
Orders
- The appellant is resentenced to serve 8 years imprisonment from the date of conviction and sentence in the lower court on 5.9.2017.
- Life imprisonment sentence is set aside.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KISUMU
CRIMINAL APPEAL NO. 85 OF 2017
ERASTUS OMWONYA MADOWO....................................................APPELLANT
VERSUS
REPUBLIC..........................................................................................RESPONDENT
(Being an application for appeal against sentence in Siaya PMCRA No. 85 of 2017
dated 5. 9.2017 before Hon. T.O. Olando – S.R.M.)
RESENTENCE
1. On 9. 10. 2019 this Court dismissed the Appellant’s Appeal against Conviction and allowed the Appellant to mitigate afresh for resentence. The Court also ordered for a Social Inquiry Report and Victim Impact Statement and despite the file being noted on 9. 10. 2019 by the Probation Officer, there is no social inquiry report on Victim Impact statement filed in Court.
2. I have considered the mitigation by the Appellant. He is 66 years old and prays for a custodial sentence so that if he dies in prison he is taken home for burial.
3. He has 7 children who left with his estranged wife. A 66 year old save man defiling a 6 and half year child is an abomination in the society.
4. There is no justification for committing such an offence. The Appellant was bonded a mandatory minimum of life imprisonment. He is 66 years old. Life in prison was merited having regard to the age of the Complainant who was a neighbor’s child. The Appellant deserves to be kept away from the society. He is a danger to the society. Let him make peace with God in prison.
5. I shall exercise discretion to resentence him to serve 80 (eight years) imprisonment as life imprisonment is so indefinite for a person of his age. The period shall be calculated from the date of his conviction and sentence in the lower Court on 5. 9.2017.
6. Appeal against sentence allowed to that extend.
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