[2020] KEHC 6978 (KLR)
The court found that, although the offence was serious and the complainant expressed fears about the appellant's release, the appellant had shown remorse and withdrawn his appeal against conviction. The social inquiry report did not support a non-custodial sentence due to the complainant's trauma, but the court...
Source-derived case information.
- Citation
- [2020] KEHC 6978 (KLR)
- Parties
- Appellant: Fredrick Odhiambo Were; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 68 of 2018
- Procedural Posture
- Criminal Appeal / Resentencing After Partial Withdrawal of Appeal
- Outcome
- Sentence reduced; 15-year prison term set aside and substituted with 8 years imprisonment from date of arrest.
- Judges
- RE Aburili
- Legal Topics
- Sentencing Principles, Appeal on Sentence, Mitigation, Social Inquiry 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 Odhiambo Were
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Resentencing After Partial Withdrawal of Appeal
Legal Issues
- 1 Whether the original 15-year mandatory minimum sentence should be reduced upon consideration of mitigation and the social inquiry report.
- 2 Whether the appellant is eligible for a non-custodial sentence given the complainant's fears and the nature of the offence.
Ratio Decidendi
The court found that, although the offence was serious and the complainant expressed fears about the appellant's release, the appellant had shown remorse and withdrawn his appeal against conviction. The social inquiry report did not support a non-custodial sentence due to the complainant's trauma, but the court determined that the mandatory minimum sentence of 15 years was excessive in the circumstances. Taking into account the appellant's mitigation, remorse, and the need to balance justice for both the victim and the appellant, the court substituted the 15-year sentence with an 8-year prison term, to be calculated from the date of arrest.
Court Disposition
Sentence reduced; 15-year prison term set aside and substituted with 8 years imprisonment from date of arrest.
Orders
- The 15-year mandatory prison term imposed on the appellant is set aside.
- The appellant is sentenced to 8 years imprisonment to be calculated from the date of his arrest on 17.8.2018.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT SIAYA
CRIMINAL APPEAL NO. 68 OF 2018
FREDRICK ODHIAMBO WERE …………..…………………. APPELLANT
VERSUS
REPUBLIC ……………………………………………………... RESPONDENT
(Appeal against sentence in Ukwala SRM Cr (SO) Case No 33 of 2018 by Hon G. Adhiambo, SRM)
RULING ON SENTENCE
1. On 29th January 2020 the appellant appeared before this court for the hearing of his appeal challenging both conviction and sentence. However, he applied to have the appeal against conviction withdrawn and the court allowed the application, effectively wholly withdrawing the appellant’s appeal against conviction. The appellant urged the court to only consider reduction of sentence imposed on him. This court then ordered for a social inquiry report on the appellant to guide on resentencing, which report was filed by the probation officer on 24th February 2020.
2. I have considered the Appellant’s mitigations and the Social Inquiry Report dated 21. 2.2020 on the Appellant.
3. I have also considered the fears expressed by the complainant and the fact that the Appellant withdrew his appeal against conviction and is remorseful for the offence.
4. The Social Inquiry Report is not in favour of a non-custodial sentence as this will cause the Complainant more trauma as she threatens to flee the home. Nonetheless, the purpose of the Social Inquiry Report was not for purposes of granting a non-custodial sentence but to guide this Court in resentencing the Appellant who was sentenced to serve mandatory minimum sentence.
5. Having considered the mitigations by the appellant and the concerns by the complainant and the seriousness of the offence, I hereby set aside the 15 years mandatory Prison term imposed on the Appellant and substitute it with a prison term of 8 years imprisonment to be calculated from the date of his arrest on 17. 8.2018.
6. Orders accordingly.
Dated, Signed and Delivered at Siaya this 25th day of February, 2020.
R.E. ABURILI
JUDGE