[2022] KEHC 10409 (KLR)

Odero v Republic (Criminal Petition E041 of 2021) [2022] KEHC 10409 (KLR) (17 May 2022) (Judgment)

Neutral citation: [2022] KEHC 10409 (KLR)

Republic of Kenya

In the High Court at Kisumu

Criminal Petition E041 of 2021

JN Kamau, J

May 17, 2022

Between

Benson Nyamwaya Odero

Petitioner

and

Republic

Respondent

Judgment

1. The Petitioner herein was tried and convicted for the offence of defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act No 3 of 2006. He was sentenced to life imprisonment.

2. Being dissatisfied with the said decision, he lodged an Appeal at the High Court in HCCRA No 69 of 2016 which, appeal was dismissed in its entirety. There was no indication if he appealed to the Court of Appeal.

3. On 1st July 2021, he filed this Petition for review of the sentence. In his application that was supported by his Affidavit, he urged this court to consider that mandatory sentence deprives the court the legitimate jurisdiction to exercise discretion to individualise an appropriate sentence to the relevant aspect of the character and record of each accused person hence unconstitutional. He contended that his right under Article 25 c, 27, 1, 2, 28 and 50(2)p of the Constitution were violated.

4. In his Written Submissions that were filed on 17th November 2021, he submitted that the issue of the mandatory nature of a sentence was decried in the case of Martin Otieno Obilo vs Republic Petition No 28 of 2020(eKLR citation not given) and appreciated in the content of the landmark ruling by the Supreme Court of Kenya. He added that the same sentiments were shared by the Kenya Judiciary Sentencing Policy Guidelines.

5. He pleaded with this court to consider that he had so far spent five (5) years in custody as he was arrested at the age of twenty-eight (28) years and was currently thirty-two (32) years. He stated that he was a young man who had been tasked with the responsibility of pursuing his family shattered dreams (sic). He averred that his family was overwhelmed with the burden of responsibilities and hence miserable due to his long incarceration.

6. He averred that during the period he had been incarcerated, he had maintained pleasant and exemplary disciplinary measures between the officers and fellow inmates and was rated among the best of all time prisoners. He added that he had engaged in transformative programs and acquired skills and certificates of diploma in numerous Bible studies (AFCM) among other ongoing courses. He believed that the skills acquired would enable him integrate well back to society.

7. He submitted that he was ready to live a crime free life and thus sought for a second chance. He asserted that he was a first offender and very remorseful for having engaged in a criminal activity. He pointed out that his family was ready to facilitate his rehabilitation and resettlement by restoring the reconciliation links with the parties in the case. He thus sought for this court’s leniency.

8. He invoked Section 333(2) of the Criminal Procedure Code and urged the Court to consider the period already spent in custody from the date of his arrest.

9. The Respondent opposed his Petition for the reason that there was overwhelming evidence against him. It asserted that the offence was against a young girl aged ten (10) years and having been forcefully deflowered, the act would forever be engraved in her life. It added that the act was a betrayal as the Petitioner was her uncle and had parental responsibility to take care of her.

10. It averred that he had not informed the court of sufficient reasons as to his ability to benefit from a reduction of the sentence if at all the court was to grant his prayer. It added that the sentence was not unconstitutional but that the same was mandatory and was meted out in accordance with the law. It urged this court to dismiss the Petition and uphold the conviction and sentence.

11. It, however, admitted that having been charged on 15th July 2015 and having been released on bond on 21st March 2016, the Petitioner had spent close to eight (8) months in remand while his matter was ongoing.

Legal Analysis 12. As the Petitioner had referred to the Ruling of the Supreme Court in the case of Francis Karioko Muruatetu & Another vs Republic [2017] eKLR in his submissions, the court thought it prudent to pronounce itself on the applicability of the same in the case herein.

13. On 6th July 2021, the Supreme Court gave guidelines in the case of Francis Karioko Muruatetu & Another vs Republic (Supra) to the effect that the said decision was only applicable in murder offences under Sections 203 and 204 of the Penal Code and not treason under Section 40 (3), robbery with violence under Section 296 (2) and attempted robbery with violence under Section 297 (2) of the Penal Code.

14. Notably, previous records in this matter were not availed. Be that as it may, this court opted to proceed with the documentation that had been placed before it. The fact that the Petitioner was remorseful and had undergone various rehabilitation programs could not assist him for the reason that he had been charged and convicted of the offence of defilement and not murder.

15. Consequently, the case of Francis Karioko Muruatetu & Another vs Republic (Supra)was inapplicable herein and hence his prayer that the court reviews his sentence thus fell by the wayside.

16. Going further, the Petition herein was premised on Section 333(2) of the Criminal Procedure CodeCap 75 (Laws of Kenya). The said Section provides that:“Subject to the provisions of section 38 of the Penal Code(Cap. 63) every sentence shall be deemed to commence from, and to include the whole of the day of, the date on which it was pronounced, except where otherwise provided in this Code.Provided that where the person sentenced under subsection (1) has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody” (emphasis court).

17. This duty is also contained in the Judiciary Sentencing Policy Guidelines (under clauses 7. 10 and 7. 11) where it is provided that: -“The proviso to section 333 (2) of the Criminal Procedure Code obligates the court to take into account the time already served in custody if the convicted person had been in custody during the trial. Failure to do so impacts on the overall period of detention which may result in an excessive punishment that is not proportional to the offence committed. In determining the period of imprisonment that should be served by an offender, the court must take into account the period in which the offender was held in custody during the trial.”

18. The duty to take into account the period an accused person had remained in custody in accordance with Section 333(2) of the Criminal Procedure Code was restated by the Court of Appeal in Ahamad Abolfathi Mohammed & Another vs Republic[2018] eKLR.

19. While the Respondent acknowledged that the Petitioner herein had spent close to eight (8) months in custody before he was convicted, this court noted that as he had been sentenced to a term of life imprisonment which term was indeterminate, Section 333(2) of Criminal Procedure Code Cap 75 (Laws of Kenya) was inapplicable in the circumstances of the case herein

Disposition 20. For the foregoing reasons, the upshot of this court’s decision was that the Petitioner’s Petition for review of sentence that was lodged on 1st July 2021 was not merited and the same be and is hereby dismissed.

21. It is so ordered.

DATED AND DELIVERED AT KISUMU THIS 17TH DAY OF MAY 2022J. KAMAUJUDGE