[2020] KEHC 8878 (KLR)
The court found that, following the declaration of mandatory minimum sentences as unconstitutional, it had discretion to resentence the appellant. Despite the appellant's mitigation, including claims of ill health and family hardship, the court considered the gravity of the offence—sexual abuse of a 9-year-old...
Source-derived case information.
- Citation
- [2020] KEHC 8878 (KLR)
- Parties
- Appellant: Julius Oduor Apondi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 40 of 2018
- Procedural Posture
- Criminal Appeal / Resentencing After Appeal Against Conviction and Sentence
- Outcome
- appeal dismissed; appellant resentenced to 75 years imprisonment
- Judges
- RE Aburili
- Legal Topics
- Resentencing, Mandatory Minimum Sentences, Sexual Offences, Child Victims, Mitigation, Unconstitutionality of Sentencing
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Julius Oduor Apondi
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Resentencing After Appeal Against Conviction and Sentence
Legal Issues
- 1 Whether the appellant should be resentenced following the declaration of mandatory minimum sentences as unconstitutional.
- 2 What is the appropriate sentence considering the seriousness of the offence and the appellant's mitigation.
Ratio Decidendi
The court found that, following the declaration of mandatory minimum sentences as unconstitutional, it had discretion to resentence the appellant. Despite the appellant's mitigation, including claims of ill health and family hardship, the court considered the gravity of the offence—sexual abuse of a 9-year-old child, breach of trust, and lack of remorse. The court emphasized the need for punishment to reflect the seriousness of the crime, provide justice for the victim, and serve broader societal interests of deterrence and rehabilitation. The absence of a Social Inquiry Report did not preclude resentencing, given the delay and the appellant's repeated requests for conclusion. The court...
Court Disposition
appeal dismissed; appellant resentenced to 75 years imprisonment
Orders
- The appellant is resentenced to serve seventy five (75) years in prison to be calculated from the date of first arrest.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT SIAYA
CRIMINAL APPEAL NO. 40 OF 2018
JULIUS ODUOR APONDI........................................APPELLANT
VERSUS
REPUBLIC................................................................RESPONDENT
(Appeal against conviction and sentence on 13/8/2018 in Ukwala SRM Cr [SO] case No. 20 of 2018 Hon G.A. Adhiambo, SRM)
RESENTENCING
1. On 29th October 2019, this Court delivered judgment in this appeal, dismissing the appeal against conviction and calling for a Social Inquiry Report from the Probation Officer, Siaya, before considering resentencing the Appellant as the Mandatory Minimum sentences have since been declared unconstitutional. However, to date the Probation Officer, despite noting the case and intervening the appellant, has not filed any Social Inquiry Report.
2. The Appellant on several occasions urged this Court to wait for the Probation Report which the Court did consider but which appear not forthcoming.
3. I have considered the touchy mitigation by the Appellant who maintains his innocence and therefor he is not remorseful for what took place against a child aged 9 years. I have considered his plea that his health is not good as he has ulcers and that his children need his care and his business of carpentry has suffered.
4. However, the Offence Committed is serious and traumatizing to a very young child who looked up to the appellant for protection. The appellant abused the trust that young children have of adults. If he has his own children, then he does not expect or delight in them being abused.
5. That is why he claims his children have dropped out of school. The victim of the offence deserves justice too. No punishment should be seen to be a white wash. Punishment is intended to among others reform, rehabilitate and vindicate the affected victim.
6. In the premises, I hereby resentence the Appellant to serve seventy five (75) years in prison to be calculated from the date when he was first arrested.
7. Orders accordingly.
Dated and Signed and Delivered at Siaya this 22nd day January, 2020.
R. E. ABURILI
JUDGE
In the presence of:
The Appellant in person
Mr. Okachi Senior Principal Prosecution Counsel for the Respondent
CA: Brenda and Modestar