[2022] KEHC 1192 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CRIMINAL DIVISION-MILIMANI COURT

MISC. CRIMINAL APPLICATION NO.457 OF 2019

NELSON ODARI ICHANA...........................................................................APPLICANT

VERSUS

REPUBLIC.................................................................................................RESPONDENT

RULING

1. Nelson Odari Ichana, the Applicant, was convicted for the offence of defilement contrary to Section 8(1)(4) of the Sexual Offences Act, and sentenced to serve eighteen (18) years imprisonment. The complainant was a minor aged thirteen (16) years old.

2. Through an application filed herein on 3rd October, 2019, the applicant seeks review of sentence. The application is supported by an affidavit deposed by the applicant where he deposed that he spent nineteen (19) months in remand custody pending hearing and determination of the case, a period that he called upon the court to consider pursuant to Section 333(2)of the Criminal Procedure Code (CPC). That he has acquired knowledge and skills while in prison and is now a minister of God.

3. He prayed for consideration for either a non-custodial sentence or reduction of the sentence.

4. The State through learned Counsel, Mr. Kiragu opposed the application. He urged that the lower court factored in time spent in custody and the sentence of eighteen years imprisonment was lenient considering the aggravating circumstances of the offence.

5. Section 362 of the CPC clothes this court with power to call for the records of the subordinate court so as to satisfy itself on the correctness, legality and/or propriety of the proceedings, order or sentence made, and in doing so, the court acts in its supervisory jurisdiction.

6. Section 362 of the CPC provides as follows:

The High Court may call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any such subordinate court.

7. A decision to impose a custodial sentence or not depends on gravity of the offence and other relevant factors that would have a negative effect on the suitability of the sentence.

8. Section 8(4) of the Sexual Offences Act provides as follows: -

A person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years.

9. In the case of Wanjema Vs. Republic (1971) E.A. 493 Trevelyan J.said.

“An appellate court should not interfere with the discretion which a trial court has exercised as to the sentence unless it is evident that it overlooked some material factors, took into consideration some immaterial fact, acted on wrong principle or the sentence is manifestly excessive in the circumstances of the case.”

10. In the case of Shadrack Kipkoech Kogo vs Republic, Eldoret Crim. Appeal No.253 of 2003,the Court of Appeal stated that:

“Sentence is essentially an exercise of discretion by the trial court and for this court to interfere it must be shown that in passing the sentence, the sentencing court took into account an irrelevant factor or factors, that a wrong principle was applied or that short of these, the sentence itself is so excessive and therefore an error of principle must be interfered.”

11. In the case ofBukenya vs. Uganda (Criminal Appeal No. 17 of 2010) [2012] UGSC 3 (29 January 2013)stated that:0

“Taking the remand period into account is clearly a mandatory requirement. As observed above, this Court has on many occasions construed this clause to mean in effect that the period which an accused person spends in lawful custody before completion of the trial, should be taken into account specifically along with other relevant factors before the court pronounces the term to be served. The three decisions which we have just cited are among many similar decisions of this Court in which we have emphasized the need to apply Clause (8). It does not mean that taking the remand period into account should be done mathematically such as subtracting that period from the sentence the Court would give. But it must be considered and that consideration must be noted in the judgement.

12. In passing the sentence meted out the trial court took into consideration mitigating factors. The learned magistrate did not indicate if it had considered time spent in remand custody during trial. The offender herein was eighteen (18) years old and the complainant was sixteen (16) years old. The act in question was consensus, save that legally, the complainant had no capacity to consent to the act

13. The applicant having spent nineteen months in custody the period should have been considered. It was therefore improper for the trial court to overlook that particular fact. Therefore, this calls for interference of the sentence imposed.

14. In the premises, I set aside the sentence imposed which I substitute with the minimum sentence provided for the offence of fifteen (15) years imprisonment, which will be effective from the 13th day of December, 2011.

15. It is so ordered.

DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 28TH DAY OF MARCH, 2022.

L. N. MUTENDE

JUDGE:

IN THE PRESENCE OF:

Ms. Adhiambo Joy for ODPP

Applicant

Court Assistant – Mutai