[2020] KEHC 8016 (KLR)
The High Court found that the trial magistrate exercised proper discretion in sentencing the appellant to 15 years imprisonment for incest, which is within the statutory range and below the maximum of life imprisonment. The court noted that the sentence was lenient given the seriousness of the offence and the...
Source-derived case information.
- Citation
- [2020] KEHC 8016 (KLR)
- Parties
- Appellant: Kennedy Ochieng’; Respondent: Republic through ODPP
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 77 of 2019
- Procedural Posture
- Criminal Appeal / Judgment on Sentence Appeal
- Outcome
- appeal dismissed
- Legal Topics
- Sentencing Principles, Sexual Offences, Incest, Appeals on Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kennedy Ochieng’
Appellant
Republic through ODPP
Respondent
Procedural Posture
Criminal Appeal / Judgment on Sentence Appeal
Legal Issues
- 1 Whether the sentence of 15 years imprisonment for incest was excessive or warranted reduction.
- 2 Whether the trial court properly exercised its discretion in sentencing under Section 20(1) of the Sexual Offences Act.
Ratio Decidendi
The High Court found that the trial magistrate exercised proper discretion in sentencing the appellant to 15 years imprisonment for incest, which is within the statutory range and below the maximum of life imprisonment. The court noted that the sentence was lenient given the seriousness of the offence and the statutory minimum. No sufficient grounds were presented to warrant interference with the sentence, and the appeal on sentence was dismissed.
Court Disposition
appeal dismissed
Orders
- The appeal on sentence is dismissed.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISII
CORAM: A.K NDUNG’U J.
CRIMINAL APPEAL NO. 77 OF 2019
KENNEDY OCHIENG’.......................................................APPELLANT
VERSUS
REPUBLIC through ODPP...............................................RESPONDENT
(An appeal from the conviction and sentence of Hon. R. Oanda, PM dated and delivered on the 29th July 2019 in the original Kilgoris PMCR No. 361 of 2017)
JUDGEMENT
1. The appellant was tried and convicted in Criminal Case No. 361 of 2017 at Kilgoris PM’s Court and sentenced to 15 years for the offence of incest contrary to Section 20(1) of the Sexual Offences Act No. 3 of 2006.
2. Vide his petition of appeal to this court; the appellant challenged the conviction and sentence. He asserts that the trial court was not aware that the complainant was his brother’s daughter and that there had been a long standing land dispute with the parents which led to his being framed.
3. He seeks reduction of sentence stating that he is remorseful and that he is a breadwinner for his family.
4. At the hearing, the appellant abandoned his appeal on conviction and pressed his appeal on reduction of the sentence imposed.
5. Mr. Otieno for the DPP noted that the maximum sentence for the offence is life imprisonment. He considered a 15 year term as a proper sentence. He, however, urged the court to consider the appellant’s plea.
6. I have considered the nature of the offence and the sentence imposed by the trial court. Section 20(1) of the Sexual Offences Act provides;
“S 20 (1)Any male person who commits an indecent act or an act which causes penetration with a female person who is to his knowledge his daughter, granddaughter, sister, mother, niece, aunt or grandmother is guilty of an offence termed incest and is liable to imprisonment for a term of not less than ten years:
Provided that, if it is alleged in the information or charge and proved that the female person is under the age of eighteen years, the accused person shall be liable to imprisonment for life and it shall be immaterial that the act which causes penetration or the indecent act was obtained with the consent of the female person.”
7. The record shows that the trial magistrate exercised discretion in sentencing when he meted out a sentence of 15 years, a clear indication that the trial court was alive to the principle in Muruatetu Case.
8. In those circumstances, therefore, I find no good ground upon which to interfere with the sentence passed. The sentence is lenient. The appeal herein is dismissed.
Dated and delivered at Kisii this 25th day of February, 2020.
A.K NDUNG’U
JUDGE
Mr. Otieno, Senior Prosecution Counsel, instructed by Office of Director of Prosecutions for the respondent.
Applicant in person.