[2024] KEHC 2450 (KLR)
The court held that although the Sexual Offences Act prescribes a life sentence for defilement under Section 8(2), the trial court lawfully imposed a determinate sentence of 25 years. Given the applicant's young age at sentencing, lack of prior criminal record, demonstrated remorse, and the significant period...
Source-derived case information.
- Citation
- [2024] KEHC 2450 (KLR)
- Parties
- Applicant: Issack Gafo; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E110 of 2023
- Procedural Posture
- Miscellaneous Criminal Application / Sentence Review Ruling
- Outcome
- Sentence reviewed and substituted.
- Judges
- A. Ong’injo
- Legal Topics
- Defilement, Sentencing Review, Mitigating Factors, Sexual Offences Act, Probation Orders
- 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
Issack Gafo
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Sentence Review Ruling
Legal Issues
- 1 Whether the applicant's sentence should be reviewed in light of mitigating factors and time already served.
- 2 Whether the trial court's sentence was lawful under Section 8(2) of the Sexual Offences Act.
Ratio Decidendi
The court held that although the Sexual Offences Act prescribes a life sentence for defilement under Section 8(2), the trial court lawfully imposed a determinate sentence of 25 years. Given the applicant's young age at sentencing, lack of prior criminal record, demonstrated remorse, and the significant period already served (over 10 years), the court found it just to substitute the remainder of the sentence with a term of 5 years, comprising 2 years in custody and 3 years on probation. The court also considered the period already served and remission in accordance with Section 333(2) of the Criminal Procedure Code and the Sentence Review Report.
Court Disposition
Sentence reviewed and substituted.
Orders
- The remainder of the applicant's sentence is substituted with 5 years: 2 years in custody and 3 years on probation.
- The applicant is to serve 2 years in custody and thereafter 3 years on probation.
Full Case Text
Judgment text and source record
20 paragraphs
Gafo v Republic (Miscellaneous Criminal Application E110 of 2023) [2024] KEHC 2450 (KLR) (8 March 2024) (Ruling)
Neutral citation: [2024] KEHC 2450 (KLR)
Republic of Kenya
In the High Court at Mombasa
Miscellaneous Criminal Application E110 of 2023
A. Ong’injo, J
March 8, 2024
Between
Issack Gafo
Applicant
and
Republic
Respondent
Ruling
1. The Applicant was charged with the offence of defilement of a child contrary to Section 8 (1) as read with 8 (2) of the Sexual Offences Act No. 3 of 2006 in Mombasa Chief Magistrates Court Criminal Case No. 2396 of 2013.
2. The Applicant was found guilty, convicted and sentenced to serve 25 years imprisonment on 1st July 2015 by Hon. J. Kamau (RM). Aggrieved by the conviction and sentence, the applicant filed an appeal, HCCR App No. 134 of 2015 which was withdrawn to pave way for review of his sentence herein.
3. Vide an application filed on 20th July 2023 pursuant to Sections 216, 329, 354, 362, 333(2) of the Criminal Procedure Code, Articles 25 (a) & (c) of the Constitution of Kenya 2010, Section 8 (1) as read with 8 (2) of the Sexual Offences Act, and the Sentencing Policy Guidelines, the Applicant now seeks for a review of his sentence in consideration of mitigating factors that he has indicated in his application namely: -i.That the applicant did not have any criminal record when being sentenced.ii.That the applicant was young aged 25 years and showed remorse.iii.That the applicant has been in custody for a period of over 9 years with good reputation.
4. The trial court file Mombasa Chief Magistrates Court Criminal Case No. 2396 of 2013 could not be traced for perusal by this court. However, the Sentence Review Report prepared by David Chiko Gambo, the Senior Probation Officer on 21st November 2023, was filed herein on 22nd February 2024. This court has established that the applicant was sentenced when he was in his early twenties. He has been in custody for 10 years 8 months and after remission, he has approximately 6 years to serve, having considered the remand period pursuant to Section 333 (2) of the Criminal Procedure Code.
5. This court finds that Section 8 (2) of the Sexual Offences Act under which the Applicant was charged provides for a sentence of life imprisonment. However, the trial court was lenient and gave determinate sentence of 25 years imprisonment was lawful. However, in consideration that he was in his early 20s, the remainder of his sentence is substituted with 5 years. He is to serve 2 years in custody and 3 years on probation.
DATED, SIGNED AND DELIVERED IN OPEN COURT/ONLINE THROUGH MS TEAMS, THIS 8TH DAY OF MARCH 2024HON. LADY JUSTICE A. ONG’INJOJUDGEIn the presence of: -Etropia- Court AssistantMr. Ngiri for the RespondentApplicant present in personHON. LADY JUSTICE A. ONG’INJOJUDGE