[2015] KEHC 5333 (KLR)
The trial court imposed a sentence of 20 years imprisonment for the offence of indecent assault under section 144(1) of the Penal Code (since repealed), whereas the maximum sentence prescribed by law for that offence was five years imprisonment with hard labour, with or without corporal punishment. The sentence...
Source-derived case information.
- Citation
- [2015] KEHC 5333 (KLR)
- Parties
- Appellant: Michael Obando; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Murang'a
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 284B of 2013
- Procedural Posture
- Criminal Appeal / Appeal Against Sentence Only
- Outcome
- Appeal against sentence allowed; sentence set aside and substituted; appellant to be released unless otherwise lawfully held.
- Judges
- DW Mbuteti
- Legal Topics
- Sentencing Illegality, Defilement, Indecent Assault, Penal Code Interpretation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Michael Obando
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Appeal Against Sentence Only
Legal Issues
- 1 Whether the sentence of 20 years imprisonment imposed for indecent assault under section 144(1) of the Penal Code was lawful.
- 2 What is the correct sentence prescribed by law for the offence of indecent assault under section 144(1) of the Penal Code (since repealed).
Ratio Decidendi
The trial court imposed a sentence of 20 years imprisonment for the offence of indecent assault under section 144(1) of the Penal Code (since repealed), whereas the maximum sentence prescribed by law for that offence was five years imprisonment with hard labour, with or without corporal punishment. The sentence imposed was therefore patently illegal. The High Court, upon concession by the prosecution, set aside the illegal sentence and substituted it with the lawful maximum sentence of five years imprisonment, effective from the original date of sentencing. As the appellant had already served more than the lawful sentence, he was ordered to be released unless otherwise lawfully held.
Court Disposition
Appeal against sentence allowed; sentence set aside and substituted; appellant to be released unless otherwise lawfully held.
Orders
- The sentence of 20 years imprisonment imposed by the trial court is set aside.
- A sentence of 5 years imprisonment is substituted, to run from 16th November 2006.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MURANG’A
CRIMINAL APPEAL NO 284B OF 2013
MICHAEL OBANDO……….……………………………….APPELLANT
VERSUS
REPUBLIC……………………..………………………….RESPONDENT
(Appeal from conviction and sentence in Thika CM Criminal Case NO 2420 of 2005 - S M Mokua, SRM)
J U D G M E N T
1. The Appellant was charged in the main count of defilement of a girl under the age of 16 years contrary to section 145(1) (since repealed) of the Penal Code. He was also charged in the alternative with indecent assaultcontrary to section 144(1) (also since repealed) of the same Code. After trial he was acquitted of the main charge but was convicted of the alternative charge. On 16th November 2006 he was sentenced to serve 20 years imprisonment. He has appealed against both conviction and sentence.
2. At the hearing of his appeal on 27th April 2015 the Appellant abandoned his appeal against conviction and chose to proceed only with the appeal against sentence.
3. Learned Senior Principal Prosecution Counsel, Mr. Njeru, stated that whereas he supports the conviction he does not support the sentence. He pointed out that the maximum sentence provided for the offence under section 144(1) (since repealed) of the Penal Code was five years imprisonment with hard labour with or without corporal punishment. The sentence of 20 years imprisonment meted out to the Appellant was therefore patently illegal.
4. Learned prosecution counsel has properly conceded the appeal against sentence. The sentence imposed upon the Appellant by the trial court was not the sentence provided for by the law for the offence that he stood convicted of. It was an illegal sentence.
5. I will in the event allow the appeal against sentence, but to the limited extent only that the sentence of 20 years imprisonment meted out to the Appellant by the trial court is hereby set aside. I will substitute therefor a sentence of 5 years imprisonment, the same to run from the date of sentencing - that is 16th November 2006. This of course means that the Appellant has long served his lawful sentence. It is unfortunate that he has been languishing in prison for a number of years now serving an illegal sentence. He shall be set at liberty forth unless otherwise lawful held. It is so ordered.
DATED AT MURANG’A THIS 29TH DAY OF APRIL 2015
HPG WAWERU
JUDGE
DELIVERED THIS 30TH DAY OF APRIL 2015