[2020] KEHC 16 (KLR)
The court found that the applicant had been sentenced to 30 years imprisonment for defilement, which exceeded the statutory minimum of 20 years. Applying the principles from the Muruatetu and Jared Injiri Koita cases, the court held that judicial discretion in sentencing should be exercised, taking into account the...
Source-derived case information.
- Citation
- [2020] KEHC 16 (KLR)
- Parties
- Applicant: Moses Omondi Oduor; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E018 of 2020
- Procedural Posture
- Miscellaneous Criminal Application / Resentencing Ruling
- Outcome
- application for resentencing allowed; sentence reduced
- Judges
- RE Aburili
- Legal Topics
- Defilement, Sentencing Principles, Resentencing, Sexual Offences Act
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Moses Omondi Oduor
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Resentencing Ruling
Legal Issues
- 1 Whether the applicant is entitled to resentencing for the offence of defilement under the Sexual Offences Act.
- 2 Whether the original sentence of 30 years imprisonment was excessive in light of the mandatory minimum sentence and recent jurisprudence.
Ratio Decidendi
The court found that the applicant had been sentenced to 30 years imprisonment for defilement, which exceeded the statutory minimum of 20 years. Applying the principles from the Muruatetu and Jared Injiri Koita cases, the court held that judicial discretion in sentencing should be exercised, taking into account the applicant's mitigation, rehabilitation, and positive prison report. Consequently, the original sentence was set aside and substituted with a 15-year term, to be calculated from the date of arrest.
Court Disposition
application for resentencing allowed; sentence reduced
Orders
- The sentence of 30 years imprisonment imposed on the applicant is set aside.
- The applicant is resentenced to 15 years imprisonment to be calculated from the date of arrest.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT SIAYA
MISC. CRIMINAL APPLICATION NO. E018 OF 2020
CORAM: HON. R.E. ABURILI J
MOSES OMONDI ODUOR................................................APPLICANT
VERSUS
REPUBLIC........................................................................RESPONDENT
(Application for resentencing in Ukwala SRM SO Case No. 46 of 2009 judgment delivered on 21st April, 2009)
RULING
1. I have considered the application for Resentence filed on 2/12/2020. I observe that the applicant convict Moses Omondi Oduor was sentenced to serve 30 years imprisonment for the offence of defilement contrary to section 8(1) as read with Section 8(3) of the Sexual Offences Act on 21/4/2009 by Ukwala RM’s court, that being sentence above the mandatory minimum of 20 years under the said section.
2. I have considered the Plea of resentence in view of Jared Injiri Koita Vs R [2019] eKLR case, applying the principles set out in the Francis Muruatetu Vs R [2017] eKLR case. I have also considered the mitigations and the life’s skills learnt by the convict in prison custody and the positive recommendation by Officer In charge Kisumu Medium Prison.
3. The convict has now served eleven (11) years of the 30 years imprisonment imposed. He was 24 years at the trial and is now 35 years old. I resentence the applicant/convict to 15 years imprisonment. The 30 years imprisonment imposed is accordingly set aside and substituted with 15 years’ imprisonment to be calculated from date of arrest of the convict.
4. Orders accordingly.
DATED, SIGNED AND DELIVERED AT SIAYA, THIS 3RD DAY OF DECEMBER, 2020
R.E. ABURILI
JUDGE