[2021] KEHC 951 (KLR)
The court found that the applicant's plea for reduction of sentence lacked merit because the facts of the case could have supported a conviction under the Sexual Offences Act, which would have resulted in a harsher sentence. Since the prosecution did not appeal the substituted conviction, the applicant benefited...
Source-derived case information.
- Citation
- [2021] KEHC 951 (KLR)
- Parties
- Applicant: Isaiah Ochieng Ogolla alias Omera; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 71 (E128) of 2021
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Sentence Reconsideration
- Outcome
- application dismissed
- Judges
- LK Kimaru
- Legal Topics
- Sentencing Review, Indecent Practices, Sexual Offences, Custodial Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Isaiah Ochieng Ogolla alias Omera
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Application for Sentence Reconsideration
Legal Issues
- 1 Whether the applicant's custodial sentence should be reduced or commuted based on remorse and personal circumstances.
- 2 Whether the substituted conviction under Section 165 of the Penal Code was appropriate given the facts.
Ratio Decidendi
The court found that the applicant's plea for reduction of sentence lacked merit because the facts of the case could have supported a conviction under the Sexual Offences Act, which would have resulted in a harsher sentence. Since the prosecution did not appeal the substituted conviction, the applicant benefited from a more lenient sentence than he might otherwise have received. The court concluded that there was no sufficient basis to interfere with the sentence imposed by the trial court and dismissed the application for sentence reconsideration.
Court Disposition
application dismissed
Orders
- The application for reduction or commutation of sentence is dismissed.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KITALE
MISC CRIMINAL APPLICATION NO. 71 (E128) OF 2021
ISAIAH OCHIENG OGOLLA...................APPLICANT
VERSUS
REPUBLIC..............................................RESPONDENT
RULING
The Applicant, Isaiah Ochieng Ogolla alias Omera was convicted of the offence of engaging in indecent practices between males contrary to Section 165of thePenal Code. This was a substitution to the charge of defilementof a child contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act. The Applicant was sentenced to serve five (5) years imprisonment on 16th July 2019.
The Applicant has now applied to this court to reconsider his sentence. He tells the court that he regrets committing the offence. He is remorseful and had learnt his lesson in the period of his incarceration. He plead with the court to consider the fact that his family has suffered while he has been in prison. His father died. He urged the court to give him a second chance at life and commute the custodial sentence that he has served and release him to enjoy his liberty.
This court has considered the Applicant’s plea for reduction of custodial sentence. It has also had the benefit of familiarizing itself with the facts of the case that the Prosecution relied on to secure the Applicant’s conviction. It was clear to this court that the Applicant should consider himself lucky he was not convicted under Sexual Offences Act because, in this court’s considered view, the facts that constitute the charge that he was convicted of could as well have constituted the facts that he could have been convicted under the Sexual Offences Act. Since the prosecution did not appeal to challenge the substituted conviction, the Applicant should ride his luck. He could be now serving a stiffer custodial sentence than the one that was imposed by the trial court.
For the above reasons, this court finds no merit with the Applicant’s application and proceed to dismiss it. It is so ordered.
DATED AT KITALE THIS 13TH DAY OF OCTOBER, 2021.
L. KIMARU
JUDGE