[2023] KEHC 25846 (KLR)

Ogero v Republic (Criminal Appeal 18 of 2020) [2023] KEHC 25846 (KLR) (21 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25846 (KLR)

Republic of Kenya

In the High Court at Narok

Criminal Appeal 18 of 2020

F Gikonyo, J

November 21, 2023

Between

Evan Majoni Ogero

Appellant

and

Republic

Respondent

(From the conviction and sentence of Hon. A.N. Sisenda (R.M) in Narok CMCR SOA No. 49 of 2019 on 11th March 2020)

Judgment

1. The appellant was aggrieved by the conviction and sentence to serve 10 years imprisonment for the defilement of a 14-year-old girl.

2. He filed this appeal through the Memorandum of Appeal received in court on 18. 08. 2020. He thereafter amended his grounds of appeal under section 350(2)(iv) of the Criminal Procedure Code into the following single ground of appeal received in court on 20. 09. 2023;i.That the trial court did not take into account time spent in remand custody during trial as enunciated under section 333(2) of the criminal procedure code.

Brief background 3. The appellant was charged with an offence of defilement contrary to section 8(1) as red with section 8(3) of the sexual offences act. No. 3 of 2006.

4. The particulars of the offence were that on 17. 07. 2019 at {particulars withheld}, Narok South sub-county within Narok county unlawfully and intentionally caused his penis to penetrate the vagina of HVN a child aged 14 years.

5. The appellant was convicted and sentenced to serve 10 years imprisonment.

Directions of the court. 6. The appeal was canvassed by way of written submissions. Both parties have filed.

Appellant’s submissions. 7. The appellant submitted that he was arraigned in court on 19. 07. 2019 and he remained in custody throughout the trial till he was convicted and sentenced to serve 10 years on 06. 08. 2020. The appellant relied on the cases of Johana Nyagaka vs Republic Criminal Appeal No. 40 of 2018, Kimutai Langat vs Republic Appeal No. 18 of 2018, Gedion Kenga Maita V Republic Criminal Appeal No. 35 of 1997, and Benard Seneyo Letikirich vs Republic [KLR2006] Cr. Appeal No. 2 of 2005.

The respondent’s submissions. 8. The respondent noted that the appellant has amended his grounds of appeal into one issues; sentence.

9. The respondent submitted that the trial court considered the appellant’s mitigation before sentencing. The court was guided by sentencing guidelines and the aggravating circumstances in the case imposing a sentence of 10 years. The complainant was a child aged 13 years. The appellant took advantage of his position in the school to lure the minor and defile the child. The sentence is proper and in accordance with the law.

Analysis and Determination. 10. Despite the notice of enhancement of sentence by the respondent, parties focused on only one issue: -i.Whether time spent in custody should be considered in the sentence.

Time spent in custody 11. The appeal is premised upon the proviso to Section 333(2) of the Criminal Procedure Code. The 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.”

12. The purport of the proviso to section 333(2) of the CPC has been explained in the Judiciary Sentencing Policy Guidelines (under clauses 7. 10 and 7. 11) as follows:“The provision 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.”

13. Therefore, Section 333(2) of the CPC pertains to fair trial; accounts for the period of confinement and also avoids arbitrary confinement.

14. The section does not however, tell how the court should take account of the period spent in custody, but giving effect to the section in sentencing should be seen or easily deducible from the circumstances of the case or the decision by the sentencing court.

15. Courts should therefore give real effect of the section (Ahamad Abolfathi Mohammed & another v Republic [2018] eKLR, and Bethwel Wilson Kibor v Republic [2009] eKLR).

16. The victim was a girl aged 14 years. The relevant penalty clause is, therefore, section 8(3) of the Sexual Offences Act No. 3 of 2006 that provides thus:“A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years."

17. The trial court (Hon. A.N. Sisenda (R.M.) in sentencing the applicant stated as follows;“I have considered the accused’s mitigation and that he is a first offender. I have also perused the pre-sentence report and noted the contents. The accused used his position in the school to lure the minor and defiled her. This is unacceptable behavior that calls for a deterrent sentence to other members of the society. Accused is therefore sentenced to serve 10 years imprisonment. 14 days right of appeal.”

18. The appellant was first arraigned in court on 19. 07. 2019 and remained in custody till 11. 03. 2020 when he was convicted and sentenced- about seven months. But, although the trial court did not indicate whether she considered time spent in custody in sentencing the applicant, the sentence imposed was too lenient especially given the circumstances the offence was committed- the appellant used his position in the school to lure the minor and defiled her-, the age of the child and the fact that the law prescribes a much higher which signifies the seriousness of the offence. The trial court also noted that the offence required deterrent sentence. In these circumstances, the purport of section 333(2) of the CPC is met. The sentence will therefore commence from 11. 03. 2020 when he was convicted and sentenced by the trial court.

Conclusion and Orders 19. In light thereof;i.The sentence of 10 years imprisonment imposed upon the applicant shall run from 11. 03. 2020- the date when he was convicted.

20. Orders accordingly.

DATED, SIGNED, AND DELIVERED AT NAROK THROUGH MICROSOFT TEAMS ONLINE APPLICATION THIS 21ST DAY OF NOVEMBER, 2023. ……………………………………….…..HON. F. GIKONYO M.JUDGEIn the presence of: -1. Mr. Muraguri –C/A2. Ms. Kerubo for DPP3. Appellant.