[2024] KEHC 1576 (KLR)
The court found that, in the absence of trial court records and specific reasons for the imposition of a 21-year sentence, and considering comparable appellate decisions where sentences for defilement were reduced, the applicant should benefit from a similar reduction. The trial magistrate did not indicate why a...
Source-derived case information.
- Citation
- [2024] KEHC 1576 (KLR)
- Parties
- Applicant: Nelson Amayo Odhiambo; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision E190 of 2022
- Procedural Posture
- Criminal Revision / Order on Sentence Review
- Outcome
- sentence reviewed and substituted
- Judges
- A. Ong’injo
- Legal Topics
- Defilement Sentencing, Sentence Review, Sexual Offences Act, Mitigation Consideration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nelson Amayo Odhiambo
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Order on Sentence Review
Legal Issues
- 1 Whether the sentence of 21 years imposed for defilement was harsh or excessive in the absence of trial court records.
- 2 Whether the applicant should benefit from sentence reduction in line with comparable authorities.
- 3 Whether the court could consider time spent in remand under section 333(2) of the Criminal Procedure Code without trial court records.
Ratio Decidendi
The court found that, in the absence of trial court records and specific reasons for the imposition of a 21-year sentence, and considering comparable appellate decisions where sentences for defilement were reduced, the applicant should benefit from a similar reduction. The trial magistrate did not indicate why a 21-year sentence was imposed or whether mitigation was considered. Therefore, the sentence was reviewed and substituted with a 15-year jail term from the date of sentence. However, due to lack of trial court records, the court could not exercise its discretion under section 333(2) of the Criminal Procedure Code to consider time spent in remand custody.
Court Disposition
sentence reviewed and substituted
Orders
- The sentence of 21 years is reviewed and substituted with a 15-year jail term from the date of sentence.
- The court cannot exercise powers under section 333(2) of the Criminal Procedure Code due to absence of trial court records.
Full Case Text
Judgment text and source record
20 paragraphs
Odhiambo v Republic (Criminal Revision E190 of 2022) [2024] KEHC 1576 (KLR) (20 February 2024) (Order)
Neutral citation: [2024] KEHC 1576 (KLR)
Republic of Kenya
In the High Court at Mombasa
Criminal Revision E190 of 2022
A. Ong’injo, J
February 20, 2024
Between
Nelson Amayo Odhiambo
Applicant
and
Republic
Respondent
(High Court at Mombasa CR Appeal No 99 of 2014) Mativo J) appeared against sentence when lower court file MSA CMC R Case No 3118 of 2011 Criminal Appeal 99 of 2014 )
Order
20/02/2023Before Hon. Lady Justice A. Ong’injo JOgwel – Court Asst. 1. The applicant in High Court at Mombasa CR Appeal No 99 of 2014) Mative J) appeared against sentence when lower court file MSA CMC R Case No 3118 of 2011 was not availed. The Judge dismissed appeal for reasons it was not established the sentence was harsh & excessive. It was also not established if the applicant was in remand custody during trial and for how long as the records of the trial court were not availed.
2. I have however considered other authorities where sentence have been reviewed where one was convicted and sentence for offence of defilement eg in Joshua Gichuki Mwangi v Republic - CRA No 84 of 2015 the court of Appeal substituted sentence of 20 years with 15 years where appellant was charged with offence of defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act No 3 of 2006.
3. In Mombasa High Court CR. Appeal No. 115 of 2017 the appellant was convicted for offence of defilement contrary to section 8(1) & 8(3) of Sexual Offences Act and the Judge substituted his sentence of 20 years with 10 years where the victim got pregnant and gave birth to a child as a result of the defilement. I do find that the applicant herein should also enjoy the benefit as the trial magistrate didn’t indicate why sentence of 21 years was imposed if at all mitigation was considered.
4. The sentence is therefore reviewed to 15 years jail term from date of sentence. There being no records of the trial court, this court cannot exercise powers under section 333(2) of the Criminal Procedure Code.
DATED, SIGNED AND DELIVERED IN OPEN COURT/ONLINE THROUGH MS TEAMS, THIS 20TH DAY OF FEBRUARY 2024HON. LADY JUSTICE A. ONG’INJOJUDGE