[2022] KEHC 13147 (KLR)
The court held that although the applicant was sentenced to a lenient term of 20 years imprisonment for defilement, which is below the statutory minimum of life imprisonment, the period he spent in custody prior to sentencing should have been considered in the computation of his sentence. The court exercised its...
Source-derived case information.
- Citation
- [2022] KEHC 13147 (KLR)
- Parties
- Applicant: Gilbert George Odhiambo; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E118 of 2022
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Reconsideration of Sentence
- Outcome
- application allowed
- Judges
- RE Aburili
- Legal Topics
- Defilement, Sentencing Principles, Sexual Offences Act, Custodial Period Credit
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Gilbert George Odhiambo
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Application for Reconsideration of Sentence
Legal Issues
- 1 Whether the period spent in custody prior to sentencing should be considered in computing the applicant's sentence for defilement.
- 2 Whether the sentence imposed was in accordance with the law given the mandatory minimum sentence under the Sexual Offences Act.
Ratio Decidendi
The court held that although the applicant was sentenced to a lenient term of 20 years imprisonment for defilement, which is below the statutory minimum of life imprisonment, the period he spent in custody prior to sentencing should have been considered in the computation of his sentence. The court exercised its discretion to allow the application and ordered that the 20-year sentence shall take into account the period the applicant spent in custody from the date of his arrest until the date of sentencing. This approach aligns with section 333(2) of the Criminal Procedure Code and established judicial practice, ensuring that the applicant is not prejudiced by time already served before...
Court Disposition
application allowed
Orders
- The 20 years imprisonment imposed on the applicant shall take into account the period spent in custody from September 16, 2017, to September 25, 2018.
- File closed.
Full Case Text
Judgment text and source record
22 paragraphs
Odhiambo v Republic (Miscellaneous Criminal Application E118 of 2022) [2022] KEHC 13147 (KLR) (23 September 2022) (Ruling)
Neutral citation: [2022] KEHC 13147 (KLR)
Republic of Kenya
In the High Court at Siaya
Miscellaneous Criminal Application E118 of 2022
RE Aburili, J
September 23, 2022
Between
Gilbert George Odhiambo
Applicant
and
Republic
Respondent
(Being an Application arising from Judgment, conviction and sentence IN Siaya PM’s court Sexual Offence Case No. 26 of 2017 delivered on 18/9/2018 by Hon. T.M. Olando, Senior Resident Magistrate AND Siaya High Court Criminal Appeal No. 54/2018)
Ruling
1. The applicant Gilbert George Odhiambo was convicted of the offence of defilement contrary to section 8(1) as read with section 8(2) of the Sexual offences Act vide Siaya PM SO No 26/2017 by Hon T M Olando, Senior Resident Magistrate. He was sentenced to serve 20 years imprisonment. The child victim was aged 10 years old.
2. He appealed to this court vide HCRA 54/2018 which appeal was dismissed both against conviction and sentence. He is now before this court seeking reconsideration of sentence taking into accounts the period he spent in custody.
3. I observe that the applicant was sentenced to a very lenient sentence of 20 years imprisonment yet the mandatory minimum is life imprisonment under section 8(2) of the Sexual Offences Act.
4. Nonetheless, he was not on bond during trial hence the court should have considered that period in sentencing him, however lenient the sentence was as it was in exercise of judicial discretion; which sentence this court upheld.
5. In the premises, I allow the application and order that the 20 years imprisonment shall take into account the period the applicant/convict spent in custody from the date of his arrest on September 16, 2017, according to the charge sheet dated September 22, 2017, until he was sentenced on September 25, 2018.
6. File closed. I so order.
DATED, SIGNED AND DELIVERED AT SIAYA THIS 23RD DAY OF SEPTEMBER, 2022R.E. ABURILIJUDGE