[2019] KEHC 1499 (KLR)
The court found that, although the appellant was convicted of defilement and the victim was only 8 years old, the medical evidence did not conclusively prove recent sexual engagement by the appellant. The appellant had been in custody since 26/06/2018 and had a previously good social standing. The pre-sentence...
Source-derived case information.
- Citation
- [2019] KEHC 1499 (KLR)
- Parties
- Appellant: Fredrick Ochieng Nyasoro; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Migori
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 45 of 2018
- Procedural Posture
- Criminal Appeal / Resentencing After Partial Appeal Allowed
- Outcome
- sentence reduced to five years' imprisonment from date of charge
- Judges
- AC Mrima
- Legal Topics
- Defilement, Sentencing Principles, Mitigation, Pre Sentence Report
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Fredrick Ochieng Nyasoro
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Resentencing After Partial Appeal Allowed
Legal Issues
- 1 Whether the original sentence of life imprisonment was appropriate in light of the circumstances and mitigation.
- 2 Whether the medical and social evidence warranted a non-custodial or reduced custodial sentence.
Ratio Decidendi
The court found that, although the appellant was convicted of defilement and the victim was only 8 years old, the medical evidence did not conclusively prove recent sexual engagement by the appellant. The appellant had been in custody since 26/06/2018 and had a previously good social standing. The pre-sentence report suggested a non-custodial sentence could be appropriate, but due to lingering animosity between the families, the court determined that a custodial sentence was still necessary to maintain peace and order. Consequently, the sentence was reduced from life imprisonment to five years' imprisonment, to run from the date of first charge.
Court Disposition
sentence reduced to five years' imprisonment from date of charge
Orders
- The appellant is sentenced to five years' imprisonment.
- The sentence shall run from 26/06/2018, the date the appellant was charged before the trial court.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MIGORI
[Coram: A. C. Mrima, J.]
CRIMINAL APPEAL NO. 45 OF 2018
FREDRICK OCHIENG NYASORO............................................................APPELLANT
VERSUS
REPUBLIC..................................................................................................RESPONDENT
SENTENCE
1. The Appellant herein was formally charged with Defilement. He was tried, found guilty and convicted accordingly. He was sentenced to life imprisonment.
2. The Appellant lodgeed an appeal on convidction and sentence. By a judgment renderd on 19/09/2019 the appeal on conviction was dismisssed, but the appeal on sentence allowed.
3. Mitigations were tendered. Counsel for the Appellant urged this Court to note that penentration was proved in the technical sense and if any it was only to very surface. Counsel urged this Court to consider the proportionality and the gravity of the offence in sentencing. He also refeered this Court to two persuasive decisions.
4. A Pre-Sentence Report was called for and produced.
5. I have carefully considered the circumstances in this matter. The victim was 8 years old. I am alive to the fact that the medical evidence in essence absolved the Appellant from any sexual engagement with the victim. From the examination it was opined that the victim had lost her virginity long before the day she encountered the Appellant. However, the Appellant was found guilty mainly on the basis of the evidence of the victim.
6. The Appellant was charged on 26/06/2018. He has been in custody since then. I have perused the Pre-Sentence Report. Prior to the incident the Appellant was of very high social standing. The community was surprised by the allegations. The family of the victim and that of the Appellant are in talking terms, but they never discuss the issue.
7. By taking into account the principles of sentencing, the circumstances of the case and the Pre-Sntence Report, I would have placed the Appellant on a non-custodial sentence. However, I note that there still is some animosity between the family of the victim and that of the Appellant over the matter. I find it prudent to separate the Appellant from the community for a while.
8. The Appellant is hereby sentenced to 5 years’ imprisonment. The sentence shall run from the date the Appellant was charged before the trial court, that is on 26/06/2018.
It is so ordered.
DELIVERED, DATED and SIGNED at MIGORI this 27th day of November 2019.
A. C. MRIMA
JUDGE