[2022] KEHC 26963 (KLR)
The court, having substituted the conviction from defilement to sexual assault under section 5 of the Sexual Offences Act, determined that the minimum sentence prescribed by law is 10 years imprisonment. The court considered the probation officer's report, the emotional impact on the victim, the positive attitude of...
Source-derived case information.
- Citation
- [2022] KEHC 26963 (KLR)
- Parties
- Appellant: Kelvin Motanya Orangi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal E001 of 2020
- Procedural Posture
- Criminal Appeal / Sentencing After Appeal and Conviction Substituted
- Outcome
- Appellant sentenced to 10 years imprisonment for sexual assault, sentence to run from 6th June, 2018.
- Judges
- GV Odunga
- Legal Topics
- Sexual Offences, Sentencing Principles, Defilement, Sexual Assault
- 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
Kelvin Motanya Orangi
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Sentencing After Appeal and Conviction Substituted
Legal Issues
- 1 What is the appropriate sentence for the appellant following substitution of the conviction from defilement to sexual assault under section 5 of the Sexual Offences Act.
- 2 Whether the sentence should take into account the period already spent in custody as per section 333(2) of the Criminal Procedure Code.
Ratio Decidendi
The court, having substituted the conviction from defilement to sexual assault under section 5 of the Sexual Offences Act, determined that the minimum sentence prescribed by law is 10 years imprisonment. The court considered the probation officer's report, the emotional impact on the victim, the positive attitude of the appellant's family and community, and the fact that the appellant had been in custody since his arrest on 6th June, 2018. Applying section 333(2) of the Criminal Procedure Code, the court ordered that the sentence run from the date of arrest. The court found no justification for imposing a sentence above the statutory minimum, given the circumstances and the law.
Court Disposition
Appellant sentenced to 10 years imprisonment for sexual assault, sentence to run from 6th June, 2018.
Orders
- The appellant is sentenced to 10 years imprisonment for sexual assault under section 5 of the Sexual Offences Act.
- The sentence shall run from 6th June, 2018, the date of arrest, pursuant to section 333(2) of the Criminal Procedure Code.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
APPELLATE SIDE
(Coram: Odunga, J)
CRIMINAL APPEAL NO. E001 OF 2020
KELVIN MOTANYA ORANGI.....................................................APPELLANT
VERSUS
REPUBLIC...................................................................................RESPONDENT
(Being an Appeal from the Judgment and Sentence of Hon G Shikwe - SRMin the Senior Resident Magistrates Court at Kithimani delivered on the 18th day of May, 2020 in Criminal Case (S.O) No 21 of 2018)
BETWEEN
REPUBLIC.........................................................................COMPLAINANT
VERSUS
KELVIN MOTANYA ORANGI...................................................ACCUSED
SENTENCE
1. On 3rd November, 2021, this Court allowed the Appellant’s Appeal in respect of the offence of defilement and substituted therefor the offence of sexual assault contrary to section 5(1)(a)(1) as read with section 5(2) of the Sexual Offences Act.
2. Before sentencing the Appellant, the Court directed that a sentencing report be prepared. According the probation officer file her report dated 24th November, 2022 which is on record. According to the said report, the victim of the offence is still emotional about the incident which negatively affected her esteem and her family insisted that justice be served as per the decision of the lower court which sentenced the appellant to 20 years imprisonment.
3. On the other hand, the appellant’s family as well as the community’s attitude was positive towards the Appellant.
4. I have considered the said report. Section 5(1)(a) (1) and (2) of the Sexual Offences Act under which the appellant was convicted provides as follows:
(1) Any person who unlawfully—
(a) penetrates the genital organs of another person with—
(i) any part of the body of another or that person; or
(ii) an object manipulated by another or that person except where such penetration is carried out for proper and professional hygienic or medical purposes;
(b) manipulates any part of his or her body or the body of another person so as to cause penetration of the genital organ into or by any part of the other person’s body, is guilty of an offence termed sexual assault.
(2) A person guilty of an offence under this section is liable upon conviction to imprisonment for a term of not less than ten years but which may be enhanced to imprisonment for life.
5. Accordingly, I sentence the Appellant to the minimum sentence of 10 years. The appellant was arrested on 6th June, 2018. Though he was admitted to bond, he was unable to secure his release. Pursuant to section 333(2) of the Criminal Procedure Code I direct that his sentence shall run from 6th June, 2018. Of course, subject to good behaviour while in prison he may benefit from remission.
6. It is so ordered.
READ, SIGNED AND DELIVERED IN OPEN COURT AT MACHAKOS THIS 3RD DAY OF MARCH, 2022.
G V ODUNGA
JUDGE
IN THE PRESENCE OF:
THE APPELLANT IN PERSON ONLINE
MR NGETICH FOR THE RESPONDENT ONLINE
CA SUSAN