[2019] KEHC 3015 (KLR)
The court found that the sentence of life imprisonment imposed on the applicant was extremely harsh given the circumstances of the case, including the fact that the victim was an adult, the applicant was a first offender, and he had already served 13 years in prison. The court applied the minimum sentencing...
Source-derived case information.
- Citation
- [2019] KEHC 3015 (KLR)
- Parties
- Applicant: JMK; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kitui
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 5 of 2019
- Procedural Posture
- Miscellaneous Application / Resentencing Application
- Outcome
- conviction upheld, sentence varied, applicant released
- Judges
- CM Kariuki
- Legal Topics
- Incest Offence, Sentencing Guidelines, Resentencing, Sexual Offences, Penal Code Interpretation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
JMK
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Application / Resentencing Application
Legal Issues
- 1 Whether the sentence of life imprisonment imposed on the applicant for the offence of incest was excessive in the circumstances.
- 2 Whether the period already served by the applicant should be deemed adequate for the offence committed.
Ratio Decidendi
The court found that the sentence of life imprisonment imposed on the applicant was extremely harsh given the circumstances of the case, including the fact that the victim was an adult, the applicant was a first offender, and he had already served 13 years in prison. The court applied the minimum sentencing provisions under the Penal Code and the relevant sentencing guidelines, concluding that the period already served was sufficient punishment. The conviction was upheld, but the sentence was set aside and substituted with the period already served, resulting in the applicant's immediate release.
Court Disposition
conviction upheld, sentence varied, applicant released
Orders
- Conviction is upheld and confirmed.
- The sentence of life imprisonment is set aside and substituted with the period already served.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KITUI
MISC CR. APPLICATION NO. 5 OF 2019
JMK…………………………………..APPLICANT
VERSUS
REPUBLIC………………………..RESPONDENT
(Being an Appeal from Original Conviction and Sentence inMwingi Senior Principal Magistrate’s Court Criminal Case (S.O.) No. 635 of 2004byHon. Richard Odenyo (SRM)on28/8/2007)
J U D G M E N T
1. The Petitioner was charged with the offence of IncestContrary to Section 166 (i) of the Penal Code. Particulars being that on diverse dates between 21st and 24th May 2005 in Mwingi District of Eastern Province being a male person had carnal knowledge of MMK a female who was to his knowledge his daughter.
2. He denied charge and after trial he was convictedand sentenced to life imprisonment.
3. He lodged HCCRA 149/07 at Machakos which was summarily dismissed.
4. He thus moved Court after serving 13 years for resentencing via Petition filed on 16/10/2018.
5. The minimum sentence for incest where the victim is an adult is 10 years imprisonment. The victim herein was 20 years old then at the time of the commission of the offence.
6. The circumstances are that the Petitioner threatened the daughter then she conceded and he had sex with her.
7. The principles guidelines on sentencing provide that factors like being a first offender to determine the extent of the sentence including the circumstances of the offence in every case.
8. The court finds that the sentence of life imprisonment was extremely harsh in all the circumstances i.e. from 10 years to life the Petitioner has already served 13 years.
9. The prosecution did not oppose and even suggested court ordering the period served to be deemed adequate.
10. This court agrees with the same and orders that:
i. Conviction is upheld and confirmed.
ii. The sentence of life is asset aside and substituted with the period already served.
iii. The Petitioner to be released forthwith.
11. It is so ordered.
Dated, Signed and Delivered at Kitui this 18th day of October 2019
C. KARIUKI
JUDGE