[2022] KEHC 9787 (KLR)

Odhiambo v Republic (Miscellaneous Criminal Application 251 of 2019) [2022] KEHC 9787 (KLR) (14 July 2022) (Ruling)

Neutral citation: [2022] KEHC 9787 (KLR)

Republic of Kenya

In the High Court at Eldoret

Miscellaneous Criminal Application 251 of 2019

RN Nyakundi, J

July 14, 2022

Between

Edwin Okoth Odhiambo

Applicant

and

Republic

Respondent

Ruling

1. The Petitioner herein has invoked this court’s jurisdiction on review of sentence in terms of Article 50, (6) (a) & (b) of the Constitution. On appraisal of the background facts the petitioner was charged, tried convicted and subsequent sentenced to a custodial sentence of 30 years, for the offence of defilement contrary to Section 8(1) as read with 8(3) of the Sexual Offences Act.

2. Being aggrieved with the conviction and sentence he preferred an appeal to the high court which in overall dismissed the appeal on conviction but interfered on sentence by substituting it with a period of 20 years imprisonment. The petitioner did not rest there he elected to pursue a further appeal to the court of appeal. That court rendered its decision on October 17, 2019 in which the result was a dismissal of the appeal in it is entirety.

3. In the instant application for review of sentence he has submitted that the period under remand custody should be taken into account, that he has since reformed and gone further to horn skills as a paralegal and qualified on matters of bible ministry. In addition the petitioner submitted that he has a pre-existing medical condition of suffering from hypertension. He therefore urged this court to find existence of compelling reasons to exercise discretion to have him benefit from an early release.

Determination 4. In the case at bar for the court to exercise review jurisdiction on sentence the petitioner ought to satisfy the criteria under Article 50 (6)(a)&(b) of the Constitution. That is to say a qualification of new compelling evidence which has come to the knowledge of the petitioner and at the time of conviction and sentence it was not easily available to be brought to the attention of the court. The arguments before court proceeded on the basis of skills gained in the course of incarceration, reformation and rehabilitation as seen from the recommendations of the prison authorities. Specifically when conceptualizing sentence at a review stage my first assumption concerns the sentence choice passed by the trial court and later confirmed by the superior courts. It is worth noting that in principle there is a separate sentence severity decision for each possible sentence type. In Elgood -v- Regina(1968) EA 274 the court held as follows(i)That the evidence that it is sought to be called must be evidence which was not available at the trial.(ii)That it is evidence relevant to the issues.(iii)That it is evidence that is credible in the sense that it is capable of belief.(iv)That the court will after considering the said evidence go on to consider whether there might have been a reasonable doubt as to the nature of the verdict or findings on guilty.

5. For the review court to interfere with a decision on sentence which has been evaluated by two other superior courts a petitioner must satisfy the test on new and compelling circumstances. In essence in absence of that criteria the court’s jurisdiction is not exercisable for sentencing is a purview discretion of the trial court. In S -v- Malgas 2001(1) SACR 469 ‘What stands out quite clearly is that the courts are a good deal freer to depart from the prescribed sentences than has been supposed in some of the previously decided cases and that it is they who are to judge whether or not the circumstances of any particular case are such as to justify a departure. However, in doing so, they are to respect, and not merely pay lip service to, the legislature’s view that the prescribed periods of imprisonment are to be taken to be ordinarily appropriate when crimes of the specified kind are committed’.

6. The inference one draws from this petition is for the court to exercise discretion to grant a petitioner a reprieve from continuing to serve the remainder of the sentence. This therefore invites the concept of restorative justice. Without attempting to lay down a general rule I feel obliged to say that serious crimes like defilement, rape or murder which evoke profound emotions and outrange are inappropriate where essential ingredients exist, to reduce the period of sentence downwards.

7. Applying the above principles there is no error, or mistake or discovery of new compelling evidence that seriously affect integrity and the fairness of the sentence imposed by the trial court and as later substituted to 20 years imprisonment by the high court.

8. The upshot being that the post-conviction sentence order and as revised by the high court is not reviewable under Article 50(6) (a) & (b) of the Constitution. The petition is therefore denied.

DATED, SIGNED AND DELIVERED AT ELDORET THIS 14TH DAY OF JULY, 2022. R. NYAKUNDIJUDGEIn the presence of:-1. Mr Mugun for the state2. Applicant in person present