[2020] KEHC 6933 (KLR)
The court held that the mandatory minimum sentences under Section 8 of the Sexual Offences Act do not remove judicial discretion in sentencing. The court considered the petitioner’s status as a first offender, the psychological impact on the 14-year-old complainant, and the petitioner’s demonstrated rehabilitation...
Source-derived case information.
- Citation
- [2020] KEHC 6933 (KLR)
- Parties
- Petitioner: John Omondi Ogutu; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Petition 4 of 2020
- Procedural Posture
- Constitutional Petition / Resentencing Judgment
- Outcome
- sentence_varied
- Judges
- TW Cherere
- Legal Topics
- Defilement Offence, Sentencing Discretion, Sexual Offences Act, Resentencing, Rehabilitation of Offenders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Omondi Ogutu
Petitioner
Republic
Respondent
Procedural Posture
Constitutional Petition / Resentencing Judgment
Legal Issues
- 1 Whether the mandatory minimum sentence under Section 8 of the Sexual Offences Act removes judicial discretion in sentencing for defilement.
- 2 Whether the petitioner is entitled to resentencing based on rehabilitation and time served.
Ratio Decidendi
The court held that the mandatory minimum sentences under Section 8 of the Sexual Offences Act do not remove judicial discretion in sentencing. The court considered the petitioner’s status as a first offender, the psychological impact on the 14-year-old complainant, and the petitioner’s demonstrated rehabilitation and vocational achievements during his 8 years of incarceration. Balancing these factors, the court found it appropriate to exercise its discretion and reduce the sentence to 12 years from the date of conviction, rather than the original 20 years or the 15 years recommended by the prosecution.
Court Disposition
sentence_varied
Orders
- The petitioner is resentenced to 12 years' imprisonment from the date of conviction, 20th November 2012.
- Judgment delivered via video conferencing due to COVID-19 restrictions.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KISUMU
(CORAM: CHERERE- J.)
PETITION NO.04 OF 2020
BETWEEN
JOHN OMONDI OGUTU...............................................PETITIONER
AND
REPUBLIC.....................................................................RESPONDENT
JUDGMENT
Introduction
1. JOHN OMONDI OGUTU, (Petitioner) was sentenced on 20. 11. 12 to20 years’ imprisonment inTAMU CRIMINAL CASE NO. 211 OF 2012, for the offence of defilement contrary to Section 8(1) as read with section 8(3) of the Sexual Offences Act No. 3 of 2006. He filed an appeal vide KISUMU HCCRA 133 OF 2012and by a judgment dated 31. 10. 13, his conviction and sentence were upheld.
2. The Petitioner has petitioned this court for resentencing. He has served 8 years within which time he has obtained GradesI, II and III in both masonry, and carpentry and joinery.
3. Ms. Gathu, Senior Prosecution Counsel for the state appreciated that the Petitioner had prepared himself for integration with the public andrecommended that the Petitioner be resentenced to 15 years.
Analysis and Determination
4. In Dismas Wafula Kilwake v Republic [2018] eKLR, the Court of Appeal 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.
5. Even though Appellant was a first offender, the psychological effect of the offences on the 14-year-old complainant cannot be underestimated.
6. As stated hereinabove, the Appellant has served 8 years. He has also been rehabilitated and prepared himself for life outside prison. I re-sentence him to 12 years from the date of conviction on 20th November, 2012.
DELIVERED THIS 14th DAY OF April 2020
T. W. CHERERE
JUDGE
Court Assistants- Ms. Amondi/Ms. Okodoi
Petitioner - Present
For the State - Mr. Onanda
Order
This judgment has been delivered to the parties via video conferencing (skype) due to measures restricting court operations due to the COVID -19 pandemic and in the light of the directions issued by his Lordship, the Chief Justice on 15th March, 2019.