[2022] KEHC 14021 (KLR)

Omanyo v Republic (Criminal Petition E010 of 2022) [2022] KEHC 14021 (KLR) (12 October 2022) (Judgment)

Neutral citation: [2022] KEHC 14021 (KLR)

Republic of Kenya

In the High Court at Siaya

Criminal Petition E010 of 2022

RE Aburili, J

October 12, 2022

Between

Stephen Oduor Omanyo

Petitioner

and

Republic

Respondent

(Being a Petition seeking resentence from Judgment, conviction and sentence in the Senior Resident Magistrate’s court at Ukwala in Sexual Offence Case No. 145 of 2014 delivered on 3. 3.2015 by Hon. R.M. Oanda, Senior Resident Magistrate AND in Siaya HCRA 52/2015 by Hon. J.Makau J on 8/6/2016 Criminal Appeal 52 of 2015 )

Judgment

1. The applicant/petitioner by his petition dated August 17, 2022 seeks from this court resentencing. He was convicted vide Ukwala PM’s court SO 145/2014 for the offence of defilement contrary section 8(1) as read with section 8(2) of the Sexual Offences Act and sentenced to serve life imprisonment. He appealed to this court vide HCRA 52/2015 which appeal was dismissed on June 8, 2016 by Hon J Makau J From the charge sheet, the applicant convict was arrested on March 27, 2014. The offence was committed on March 22, 2014. The child victim was aged 7 years old.

2. The child suffered severe lacerations and tear on her labia majora and minora. Her cervix was obliterated. She had her vaginal orifice torn including her anal orifice.

3. Upon being convicted on March 4, 2015, the convict asked for time to mitigate the following day. He never mitigated the following day. He told the trial court to, instead, disqualify itself. He was sentenced to serve life imprisonment. He claims that he appealed to the Court of Appeal and that his appeal was dismissed. There is no such evidence of filing an appeal. He relies on the decision by Odunga J in Machakos HC Constitutional Petition E017/2022 in seeking for review of sentence, on account that it is unconstitutional.

4. I have considered the decision and the principles set out therein and am guided accordingly.

5. In this case, I find no mitigating circumstances to warrant exercise of discretion to impose a lesser severe sentence. The convict does not deserve any mercy from any court of law. He claims that he has 3 children and a wife who are suffering in his absence. He offers no apology or mercy to the little child victim of his barbaric gruesome offence. He destroyed the life of a very young child. He never mitigated and he has not found it necessary to mitigate.

6. I find no merit in his petition which is hereby dismissed.

7. File closed.

DATED, SIGNED AND DELIVERED AT SIAYA THIS 12TH DAY OF OCTOBER, 2022. R.E. ABURILIJUDGE