[2023] KECA 163 (KLR)
The Court of Appeal held that, in light of evolving jurisprudence, the minimum sentences prescribed under section 8(1)(3) of the Sexual Offences Act are not mandatory, and courts have discretion to impose lesser sentences where appropriate. The appellant, who was 20 years old at the time of the offence and had...
Source-derived case information.
- Citation
- [2023] KECA 163 (KLR)
- Parties
- Appellant: Joseph Karande Mamboleo; Respondent: Republic
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 162 of 2016
- Procedural Posture
- Criminal Appeal / Second Appeal, Sentence Only
- Outcome
- appeal allowed; sentence reduced to period served
- Judges
- PO Kiage, M Ngugi, F Tuiyott
- Legal Topics
- Sentencing Principles, Sexual Offences, Mandatory Minimum Sentences, Appellate Review, Mitigation, Youthful Offenders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Karande Mamboleo
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Second Appeal, Sentence Only
Legal Issues
- 1 Whether the mandatory minimum sentence under section 8(1)(3) of the Sexual Offences Act is obligatory or discretionary.
- 2 Whether the sentence of 20 years' imprisonment imposed on the appellant was excessive in the circumstances.
- 3 Whether the appellant's mitigation and age warranted a reduction of sentence.
Ratio Decidendi
The Court of Appeal held that, in light of evolving jurisprudence, the minimum sentences prescribed under section 8(1)(3) of the Sexual Offences Act are not mandatory, and courts have discretion to impose lesser sentences where appropriate. The appellant, who was 20 years old at the time of the offence and had already served approximately 8 years and 6 months, had sufficiently suffered for his misdeed. The court considered his mitigation, age, and the period served, and found that further incarceration would be excessive. The seriousness of the offence was acknowledged, but the court found that leniency was justified in the circumstances. Consequently, the sentence was reduced to the...
Court Disposition
appeal allowed; sentence reduced to period served
Orders
- The appeal is allowed.
- The sentence is reduced to the period already served.
Full Case Text
Judgment text and source record
23 paragraphs
Mamboleo v Republic (Criminal Appeal 162 of 2016) [2023] KECA 163 (KLR) (17 February 2023) (Judgment)
Neutral citation: [2023] KECA 163 (KLR)
Republic of Kenya
In the Court of Appeal at Kisumu
Criminal Appeal 162 of 2016
PO Kiage, M Ngugi & F Tuiyott, JJA
February 17, 2023
Between
Joseph Karande Mamboleo
Appellant
and
Republic
Respondent
(Appeal from the Judgment of the High Court of Kenya at Kakamega (G. Dulu, J) dated 12th November, 2015. inHCCRA No. 127 of 2013)
Judgment
1. This second appeal is against sentence only.
2. Joseph Karende Mamboleo, the appellant, is serving a sentence of 20 years imposed on him on June 28, 2013 upon conviction for the offence of attempted defilement contrary to section 8(1) (3) of the Sexual Offences Act No 3 of the 2006. His first appeal against both conviction and sentence was unsuccessful.
3. In passing the sentence, the trial court observed:“Mitigation noted. Section 8(1) (3) of the Sexual Offences Act provides for a mandatory sentence of not less than 20 years. This court is bound by that law. I therefore sentence the accused 20 years’ imprisonment (sic)”
4. In upholding the sentence Dulu, J stated,“The sentence of 20 years’ imprisonment is the minimum punishment provided by law. The trial court had no option but to impose that punishment. The sentence cannot be said to be harsh or excessive.”
5. Although the state, through learned counsel Mr Okang’o, opposed the appeal, we are of the view that it is merited. We are now in an era where the law is that the minimum sentences prescribed for various offences under the Sexual Offences Act are not mandatory. At trial the appellant offered the following mitigation;“I stay with my mother. My brother passed away. I have not established myself at home. I am still a young man.”
6. At the time of commission of the offence the estimated age of the appellant was 20 years. As of today the appellant will have served a prison term of about 8 years and 6 months and would be about 31 years old. It seems to us that this young man has suffered enough punishment for his misdeed and deserves a reprieve. In allowing the appeal we note that the victim was 15 years old at the time of the offence. While we can never minimize the seriousness of the offence, the age of the victim may be of some comfort to us that the leniency we have extended to the appellant is not inappropriate.
7. We allow the appeal. The sentence is reduced to the period served. The appellant shall be released forthwith unless held for some other lawful reason or reasons.
DATED AND DELIVERED AT KISUMU THIS 17TH DAY OF FEBRUARY, 2023. P.O. KIAGEJUDGE OF APPEAL............................................MUMBI NGUGIJUDGE OF APPEAL............................................F. TUIYOTTJUDGE OF APPEAL............................................I certify that this is a true copy of the original.DEPUTY REGISTRAR