Patrick Okoth Obwore v Republic [2017] KEHC 4051 (KLR)
- Citation
- [2017] KEHC 4051 (KLR)
- Status
- Judgment
- Jurisdiction
- Kenya
- Court
- High Court
- Panel
- KW Kiarie
- Case number
- Criminal Appeal 50 of 2016
- Language
- English
More details
- Court
- High Court
- Panel
- KW Kiarie
- Case number
- Criminal Appeal 50 of 2016
- Language
- English
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court found that although the complainant's guardian initially consented to the appellant taking the complainant to Marenga beach, this consent was obtained by misrepresentation of facts. The appellant instead took the complainant to his home and then to Teso, where she stayed for several days and performed domestic chores. The court held that consent obtained by deceit does not amount to valid consent under the law. The complainant was under sixteen years of age at the time, satisfying the statutory requirements for the offence of kidnapping. However, the court found that the sentence of seven years was excessive for a first offender and reduced it to five years imprisonment. The appeal therefore succeeded to the extent of sentence reduction.
Court disposition
Appeal allowed in part; conviction upheld, sentence reduced.
Orders
- The sentence of seven years imprisonment is set aside and substituted with a sentence of five years imprisonment.
02
Material facts
Parties
Patrick Okoth Obwore
AppellantRepublic
Respondent Counsel: Mr. OwitiAmounts and remedies
- Original Sentence Years: 7
- Reduced Sentence Years: 5
03
Procedural history
Posture
Criminal Appeal / Judgment
04
Questions and positions
Legal issues
- 01
Whether the appellant kidnapped the complainant from lawful guardianship without valid consent.
- 02
Whether the sentence imposed was harsh and excessive in the circumstances.
Party arguments
- Applicant
- The appellant, acting in person, argued that the sentence of seven years imprisonment was harsh and excessive. He contended that the trial magistrate erred in law and fact by imposing such a sentence, especially considering he was a first offender.
- Respondent
- The state, through Mr. Owiti, conceded the appeal on both conviction and sentence, arguing that the ingredients of kidnapping were not established as the guardian had initially consented to the appellant taking the complainant.
05
Court’s reasoning
Legal principles
- 01
Section 255 of the Penal Code
Kidnapping is defined as taking or enticing a minor out of the keeping of a lawful guardian without the guardian's consent.
- 02
General principles of criminal law; applied in the context of the Penal Code
Consent obtained by misrepresentation or deceit is not valid consent.
- 03
Sentencing principles; Section 257 of the Penal Code
A first offender should not ordinarily receive the maximum penalty unless circumstances warrant it.
06
Ratio, limits and disposition
Ratio decidendi
The court found that although the complainant's guardian initially consented to the appellant taking the complainant to Marenga beach, this consent was obtained by misrepresentation of facts. The appellant instead took the complainant to his home and then to Teso, where she stayed for several days and performed domestic chores. The court held that consent obtained by deceit does not amount to valid consent under the law. The complainant was under sixteen years of age at the time, satisfying the statutory requirements for the offence of kidnapping. However, the court found that the sentence of seven years was excessive for a first offender and reduced it to five years imprisonment. The appeal therefore succeeded to the extent of sentence reduction.
Obiter and limits
- A first appellate court is required to analyze and evaluate afresh all the evidence adduced before the lower court, bearing in mind that it neither saw nor heard the witnesses.
- Consent obtained by deceit is not consent.
Court disposition
Appeal allowed in part; conviction upheld, sentence reduced.
- The sentence of seven years imprisonment is set aside and substituted with a sentence of five years imprisonment.
Source and reliance status
High Court
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
High Court
Judgment
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUSIA
CRIMINAL APPEAL NO. 50 OF 2016
PATRICK OKOTH OBWORE..................................APPELLANT
VERSUS
REPUBLIC....................................................................REPUBLIC
(Fromthe original conviction and sentence in S.O.A case No.126 of 2014 of the Chief Magistrate’s Court at Busia by Hon. M.A Nanzushi– Senior Resident Magistrate)
JUDGMENT
PATRICK OKOTH OBWORE,the appellant herein, was convicted for the offence of kidnapping contrary to section 255 of the Penal Code.
The particulars of the offence were that on 15th November 2014 at[Particulars withheld]sub location, inBUSIA County, he kidnapped J A Bfrom lawful guardianship of M N.
He was sentenced to serve seven years imprisonment. He has appealed against the sentence which he says was very harsh.
The appellant was in person. He raised contended that the learned trial magistrate erred in law and in fact by meting out a harsh sentence.
The state conceded the appeal on both conviction and sentence through Mr. Owiti, learned counsel. He contended that the ingredients of kidnapping were not established.
The facts of the prosecution case were briefly as follows:
The daughter of the appellant was staying in the home of the complainant.
On 14th November 2014, the appellant informed M N, the guardian of the complainant that he was taking his daughter and the complainant to escort him to Marenga beach. The following morning when M N woke up, she found the two girls and the appellant having left. When the complainant returned, the matter was reported to the police and the appellant was arrested and charged.
The appellant denied the offence.
This is a first appellate court. As expected, I have analyzed and evaluated afresh all the evidence adduced before the lower court and I have drawn my own conclusions while bearing in mind that I neither saw nor heard any of the witnesses. I will be guided by the celebrated case of OKENO vs. REPUBLIC [1972] EA 32.
The offence of kidnapping is defined under section 255 of the Penal Code as follows:
Any person who takes or entices any minor under fourteen years of age if a male, or under sixteen years of age if a female, or any person of unsound mind, out of the keeping of a lawful guardian of the minor or person of unsound mind, without the consent of the guardian, is said to kidnap the minor or person from lawful guardianship.
The ingredients of kidnapping are as follows:
(a)The taking away or enticing of a minor or a person of unsound mind out of the keeping of a lawful guardian
(b) Without the consent of the guardian
(c) The minor if male, be under the age of fourteen years and if female, be under the age of sixteen years.
In the instant case, the evidence on record indicates that when J A B’Sguardian(PW2)was informed by the appellant that he was going to take the two girls(J A Bincluded)to escort him to Marenga beach she never raised any objection. I therefore find that the appellant had consent to take J A B to Marenga beach. However from the narration of J A B,the consent was obtained by misrepresentation of facts. She testified that at about 3a.m they boarded a vehicle to the home of the appellant. This was after the appellant had informed them that they were only escorting him to Marenga beach and were to return in the morning. From the appellants home they went to Teso where they stayed for several days before she returned home. While there, she cooked and moped the appellant’s house. Consent obtained by deceit is not consent.
At the time of the offence, it was established that J A B was under the age of sixteen years.
I find that the offence of kidnapping was proved to the required standards.
The punishment for kidnapping is provided for under section 257 of the Penal Code as follows:
Any person who kidnaps any person from Kenya or from lawful guardianship is guilty of a felony and is liable to imprisonment for seven years.
The appellant was a first offender. He ought not to have been sentenced to the maximum penalty. I am persuaded to reduce the sentence to five years imprisonment. To that extent his appeal succeed.
DELIVERED and SIGNED at BUSIA this 31st day of July, 2017
KIARIE WAWERU KIARIE
JUDGE
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