[2024] KEHC 2198 (KLR)
The court held that the sentence imposed was the minimum prescribed by section 8(4) of the Sexual Offences Act for defilement of a child aged sixteen to eighteen years. The appellate court found no evidence that the trial magistrate acted on a wrong principle, overlooked a material factor, or imposed a manifestly...
Source-derived case information.
- Citation
- [2024] KEHC 2198 (KLR)
- Parties
- Appellant: Woston Otieno Gor; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Homa Bay
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal E043 of 2023
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal dismissed
- Judges
- KW Kiarie
- Legal Topics
- Defilement, Sentencing Principles, Sexual Offences Act, Mandatory Minimum Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Woston Otieno Gor
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the trial court's imposition of the minimum mandatory sentence under section 8(4) of the Sexual Offences Act violated the appellant's right to a fair hearing.
- 2 Whether there are sufficient grounds for the appellate court to interfere with the sentence imposed by the trial court.
Ratio Decidendi
The court held that the sentence imposed was the minimum prescribed by section 8(4) of the Sexual Offences Act for defilement of a child aged sixteen to eighteen years. The appellate court found no evidence that the trial magistrate acted on a wrong principle, overlooked a material factor, or imposed a manifestly excessive sentence. The appellant's argument that the mandatory minimum sentence violated his right to a fair hearing was rejected, as the law clearly prescribes the sentence. Consequently, there were no sufficient grounds to interfere with the sentence, and the appeal lacked merit.
Court Disposition
appeal dismissed
Orders
- The appeal is dismissed.
Full Case Text
Judgment text and source record
25 paragraphs
Gor v Republic (Criminal Appeal E043 of 2023) [2024] KEHC 2198 (KLR) (5 March 2024) (Judgment)
Neutral citation: [2024] KEHC 2198 (KLR)
Republic of Kenya
In the High Court at Homa Bay
Criminal Appeal E043 of 2023
KW Kiarie, J
March 5, 2024
Between
Woston Otieno Gor
Appellant
and
Republic
Respondent
(From the original conviction and sentence in S.O.A case NO.01 of 2022 of the Senior Principal Magistrate’s Court at Oyugis (Kendu Bay) by Hon. Celesa A. Okore-Principal Magistrate)
Judgment
1. Woston Otieno Gor, the appellant herein, was convicted of the offence of defilement contrary to section 8 (1) as read with section 8 (4) of the Sexual Offences Act No. 3 0f 2006.
2. The particulars of the offence are that on the 8th day of January 2022 at Rachuonyo North sub-county within Homa Bay County, he intentionally and unlawfully caused his penis to penetrate the vagina of S.A.A., a child aged seventeen years.
3. The appellant was sentenced to fifteen years’ imprisonment. He was aggrieved and filed this appeal against the sentence. He was in person. He appealed against the sentence and contended that 15 years imprisonment is a minimum mandatory sentence, which denied him the right to a fair hearing, whereby the discretional powers of the trial magistrate were curtailed.
4. The state opposed the appeal through Mr. David Ndege, learned counsel who contended that he was sentenced to the minimum prescribed sentence.
5. This is a first appellate court. As expected, I analyzed and evaluated all the evidence adduced before the lower court afresh and made conclusions, bearing in mind that I neither saw nor heard any of the witnesses. I will be guided by the celebrated case of Okeno vs Republic [1972] EA 32.
6. An appellate court would interfere with the sentence of the trial court only where there exists, to a sufficient extent, circumstances entitling it to vary the trial court’s order. These circumstances were well illustrated in the case of Nillson vs. Republic [1970] E.A. 599, as follows:The principles upon which an appellate court will act in exercising its jurisdiction to review sentences are fairly established. The court does not alter a sentence on the mere ground that if the members of the court had been trying the appellant, they might have passed a somewhat different sentence, and it will not ordinarily interfere with the discretion exercised by a trial Judge unless as was said in James Vs. Rex (1950), 18 EACA 147, it is evident that the Judge has acted upon some wrong principle or overlooked some material factor. To this, we would also add a third criterion, namely, that the sentence is manifestly excessive in view of the circumstances of the case. R Vs. Shershewsity (1912) C.CA 28 T.LR 364.
7. Section 8 (4) of the Sexual Offences Act provides:A person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years.
8. The circumstances of this case do not call for this court to intervene in the sentence. Secondly, he was sentenced to the minimum sentence prescribed by the law.
9. I find that the appeal lacks merit. Consequently, it is dismissed.
DELIVERED AND SIGNED AT HOMA BAY THIS 5TH DAY OF MARCH 2024KIARIE WAWERU KIARIEJUDGE