[2022] KEHC 11726 (KLR)

Odhiambo v Republic (Criminal Petition E005 of 2021) [2022] KEHC 11726 (KLR) (13 May 2022) (Judgment)

Neutral citation: [2022] KEHC 11726 (KLR)

Republic of Kenya

In the High Court at Kisumu

Criminal Petition E005 of 2021

JN Kamau, J

May 13, 2022

Between

Noah Okoth Odhiambo

Petitioner

and

Republic

Respondent

Judgment

Introduction 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 Kisumu in HCCRA No 45 of 2018 which appeal was dismissed in its entirety. There was no indication if he appealed to the Court of Appeal.

3. On 12th March 2021, he filed this Petition for review of the sentence. In his application that was supported by his Affidavit, he stated that he was bound to suffer irreparable loss if his sentence of life imprisonment was left to stand as it was because it was untenable.

4. In his Written Submissions that were filed on 17th December 2021, he invoked Section 216 of the Criminal Procedure Code and pleaded with this court to consider his mitigation and grant a new conviction (sic) in conformity with Article 29(d) of the Constitution of Kenya, 2010.

5. He pointed out that the life sentence that was imposed on him caused him psychological torture. He was emphatic that Article 29(d)(f) of the Constitution of Kenya provided for protection from cruel, inhumane, degrading treatments or punishment and physical and/or psychological torture. In this regard, he placed reliance on the case of Kafkaris vs Cyprus Application No 21906/04 where the European Court of Human Rights held that a life sentence is de jure and de facto reducible.

6. He added that in the case of Vinter & Others vs Repunited Kingdom (Applications No’s 66069/09, 130/10 and 3896/100), the court held that the life sentence against the three applicants were incompatible with Article 3 of the European Convention on Human Rights because the Criminal Justice Act of 2003 was unclear as to the review mechanism provided by the Minister after the prisoner serving a life sentence served twenty five (25) years and was removed under the 2003 Act.

7. He pleaded with the court to consider that he was a first offender, reformed and totally remorseful. He urged the court to exercise leniency. In this regard, he placed reliance on several cases among them the case of Robert Mutashi Auda vs Republic Criminal Appeal No 247 of 2014 (eKLR citation not given) where the court exercised leniency and reduced the appellant’s death sentence to the term already served.

8. He argued that pursuant to aforesaid European case laws, being a signatory to the international laws since 1972, Kenya was thus bound by international laws and jurisprudence. He added that Article 20(1) and (2) provides that the Bill of Rights applied to all law and bound all state organs and persons. He urged the court to quash his life sentence and impose an appropriate sentence.

9. The Respondent opposed his Petition for the reason that the July 2021 directions by the Supreme Court in Francis Karioko Muruatetu & Another vs Republic [2017]eKLR did not invalidate the mandatory and minimum sentences in the Penal Code, the Sexual Offences Act or other statute and hence, the same did not apply to the defilement case herein.

10. It argued that in the event the Petitioner had not based his application on the Francis Karioko Muruatetu & Another vs Republic (Supra), there was overwhelming evidence against him for the offence he committed and that that was the reason why his appeal was dismissed.

11. It contended that the act he committed was so cruel and inhumane considering the girl defiled was of tender age and the said action would gravely affect her life entirely.

12. It was categorical that he had not supplied to the court any document to show that he was remorseful or attempt to adduce sufficient reason as to his ability to benefit from a reduction of the sentence. It urged the court to dismiss his Petition and uphold his conviction and sentence.

Legal Analysis 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 only applied in respect to sentences of murder under Sections 203 and 204 of the Penal Code and was not applicable to 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. The fact that the Petitioner was remorseful could not assist him for the reason that he had been charged and convicted of the offence of defilement and not murder and could not therefore benefit from a reduction of the sentence. As the Respondent correctly pointed out, the case of Francis Karioko Muruatetu & Another vs Republic (Supra) did not invalidate the mandatory and minimum sentences in the Penal Code, the Sexual Offences Act or other statute and hence the sentence of life imprisonment was lawful.

Disposition 15. 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 12th March 2021 was not merited and the same be and is hereby dismissed.

16. It is so ordered.

DATED AND DELIVERED AT KISUMU THIS 13TH DAY OF MAY 2022J. KAMAUJUDGE