[2019] KEHC 308 (KLR)
The court found that, following the Supreme Court's decision in Muruatetu, mandatory sentences are unconstitutional and courts must exercise discretion in sentencing. Considering the petitioner’s remorse, rehabilitation, and the time already served, as well as the seriousness of the offence and its psychological...
Source-derived case information.
- Citation
- [2019] KEHC 308 (KLR)
- Parties
- Appellant: Jacob Odhiambo Omumbo; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Petition 63 of 2019
- Procedural Posture
- Criminal Resentencing Application / Judgment
- Outcome
- petition for resentencing allowed; sentence varied
- Judges
- TW Cherere
- Legal Topics
- Defilement, Sentencing Discretion, Mandatory Sentences, Sexual Offences Act, Resentencing, Rehabilitation
- 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
Jacob Odhiambo Omumbo
Appellant
Republic
Respondent
Procedural Posture
Criminal Resentencing Application / Judgment
Legal Issues
- 1 Whether the petitioner is entitled to resentencing following the Supreme Court decision declaring mandatory sentences unconstitutional.
- 2 What is the appropriate sentence for the petitioner considering the circumstances of the offence and his rehabilitation.
Ratio Decidendi
The court found that, following the Supreme Court's decision in Muruatetu, mandatory sentences are unconstitutional and courts must exercise discretion in sentencing. Considering the petitioner’s remorse, rehabilitation, and the time already served, as well as the seriousness of the offence and its psychological impact on the minor victim, the court determined that a sentence of 15 years’ imprisonment from the original sentencing date was appropriate. The court balanced the need for punishment and deterrence with the petitioner’s demonstrated rehabilitation and prospects for reintegration into society.
Court Disposition
petition for resentencing allowed; sentence varied
Orders
- The petitioner is resentenced to 15 years' imprisonment from 17th August, 2007.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISUMU
PETITION NO.63 OF 2019
(CORAM: CHERERE- J.)
BETWEEN
JACOB ODHIAMBO OMUMBO.....................................…PETITIONER
AND
REPUBLIC............................................................................RESPONDENT
JUDGMENT
INTRODUCTION
1. JACOB ODHIAMBO OMUMBO, (Petitioner) was sentenced on 17th August, 2007 to life imprisonment in NYANDO CRIMINAL CASE NO. 244 OF 2007, for the offence of defilement contrary to Section 8(1) as read with section 8(2) of the Sexual Offences Act No. 3 of 2006.
2. Petitioner lodged an appeal KISUMU HIGH COURT CRIMINAL APPEAL NO. 133 OF 2007 which by a judgment dated 12th March, 2008 upheld the conviction and sentence.
3. The Petitioner subsequently appealed to the Court of Appeal inKISUMU CRIMINAL APPEAL NO. 80 OF 2008 which by a judgment dated 05th December, 2008 similarly upheld the conviction sentence.
4. The Petitioner has petitioned this court for resentencing. He expressed remorse and stated that he was arrested at the age of 35 years and had served 9 years since conviction within which time he has been trained in upholster and tailoring and obtained Grades III, II and I and Grade II in masonry as a means of rehabilitation. The officer in
charge Kisumu Maximum Prison by his letter dated 19th November, 2019, filed on 03rd December, 2019 has vouched for the Petitioner’s good conduct.
5. Ms. Gathu, Senior Prosecution Counsel for the state appreciated that the Petitioner had prepared himself for integration with the public and recommended that he be resentenced to 30 more years.
Analysis and Determination
6. At the time of the petitioner’s conviction, mandatory sentences had not been declared to be unconstitutional.
7. The Supreme Court’s decision in Francis Karioki Muruatetu & Another v Republic & 5 others [2016] eKLRdeclaring the mandatory death sentence unconstitutional has necessitated resentencing of all persons previously sentenced to the mandatory sentences.
8. I have considered The Sentencing Policy Guidelines, 2016 and its application which is intended to promote transparency, consistency and fairness in sentencing (See Michael Kathewa Laichena & another v Republic [2018] eKLR).
9. In Dismas Wafula Kilwake v Republic [2018] eKLR, the Court of Appeal set out the factors to be considered in sentencing under the Act. It observed as follows:
[W]e hold that the provisions of section 8 of the Sexual Offences Act must be interpreted so as not to take away the discretion of the court
in sentencing. Those provisions are indicative of the seriousness with which the Legislature and the society take the offence of defilement. In appropriate cases therefore, the court, freely exercising its discretion in sentencing, should be able to impose any of the sentences prescribed, if the circumstances of the case so demand. On the other hand, the court cannot be constrained by section 8 to impose the provided sentences if the circumstances do not demand it. The argument that mandatory sentences are justified because sometimes courts impose unreasonable or lenient sentences which do not deter commission of the particular offences is not convincing, granted the express right of appeal or revision available in the event of arbitrary or unreasonable exercise of discretion in sentencing.
10. Even though Appellant was a first offender, the psychological effect of the offences on the 11-year-old complainant cannot be underestimated.
11. The Appellant has served 9 years. He has expressed remorse and has been rehabilitated. I re-sentence him to 15 years from17thAugust, 2007when he was sentenced.
DELIVERED AND SIGNED IN KISUMU THIS 18thDAY OF December 2019
T. W. CHERERE
JUDGE
In the presence of-
Court Assistant - Amondi/Okodoi
Petitioner - Present in person
For the State - Ms. Gathu