[2020] KEHC 5759 (KLR)
The court found that, although the appellant was a first offender and advanced in age, the offence of defilement committed against a 9-year-old child was heinous and had lasting traumatic effects on the victim, who had to be relocated. The court considered the appellant's personal circumstances, including his age,...
Source-derived case information.
- Citation
- [2020] KEHC 5759 (KLR)
- Parties
- Appellant: Samwel Ongok Ongok; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 69 of 2018
- Procedural Posture
- Criminal Appeal / Resentencing After Dismissal of Appeal Against Conviction
- Outcome
- appeal against conviction dismissed; sentence varied on resentencing
- Judges
- RE Aburili
- Legal Topics
- Defilement, Sentencing Principles, Resentencing, Sexual Offences Act, Victim Impact, Mandatory Sentences
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Samwel Ongok Ongok
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Resentencing After Dismissal of Appeal Against Conviction
Legal Issues
- 1 Whether the mandatory life sentence imposed under Section 8(2) of the Sexual Offences Act should be reconsidered in light of recent jurisprudence.
- 2 What is the appropriate sentence for the appellant given the circumstances of the offence and the offender.
Ratio Decidendi
The court found that, although the appellant was a first offender and advanced in age, the offence of defilement committed against a 9-year-old child was heinous and had lasting traumatic effects on the victim, who had to be relocated. The court considered the appellant's personal circumstances, including his age, family situation, and the fact that he maintained his innocence. However, applying the principles from Francis Karioko Muruatetu v Republic and Jared Injiri Koita v Republic, the court held that the mandatory life sentence under Section 8(2) of the Sexual Offences Act was not absolute and could be reviewed. Balancing the need for deterrence, the gravity of the offence, and the...
Court Disposition
appeal against conviction dismissed; sentence varied on resentencing
Orders
- The appellant is resentenced to thirty (30) years imprisonment, to be calculated from the date of sentence in the lower court on 5/12/2018.
- Right of appeal explained.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT SIAYA
CRIMINAL APPEAL NO. 69 OF 2018 [SO]
(CORAM: R. E. ABURILI - J.)
BETWEEN
SAMWEL ONGOK ONGOK...............APPELLANT
VERSUS
REPUBLIC.........................................RESPONDENT
(Being an Appeal both conviction and sentence in Bondo Principal Magistrate Court Case No. 25 of 2018 dated 5. 11. 2008 by Hon. M. Obiero, Principal Magistrate)
RESENTENCING VIA SKYPE
1. On 10/2/2020, this court delivered judgment in this appeal dismissing the appellant’s appeal against conviction.
2. On sentence, the court ordered for a Social Inquiry Report to be filed by Siaya County Probation Officer. I also ordered for a Victim Impact Statement; which were filed on 2/3/2020 and the appellant accorded an opportunity to mitigate for resentencing now that he was sentenced to serve mandatory sentence of life imprisonment as stipulated in Section 8(2) of the Sexual Offences Act.
3. I have considered the Probation Officer’s report dated 2/3/2020 signed by Euphemia Kidwoli, Probation Officer, and Bondo Sub-county of Siaya County.
4. I have also considered the fact that the victim could not be traced and that her mother did not want to hear anything of this case and refused to divulge information on the inmate and the offence saying she testified in court.
5. The Appellant is said to be a lay reader in his local Nomiya Church. He is aged 71 years old with a family of a third wife and seven children aged 19 years and a pre-school kid. He maintains his innocence despite the court finding him guilty. He is a first offender. The victim residence had to be changed after the incident.
6. The Appellant also claims that his children are being shared amongst other people yet he is still alive. He wants to be released to go home because he is suffering in prison.
7. As correctly submitted by Mr. Okachi for the Respondent, the Probation Officer’s report reveals that the victim had to be relocated as she was traumatized by the incident. She was a young child aged only 9 years old when she was defiled by the appellant who claims that he was framed. I did not find any reason why he could be framed. The offence of defilement is heinous. It’s traumatizing to the victim and the society at large.
8. The Appellant has his own young children the age of the victim of this heinous offence who look up to him for protection.
9. As an old man, he knew and ought to have known the dire consequences of not taming his lust for young children. He had a wife. The question that this court must not cease to ask is why did he prey on an innocent young child of age 9 years? Only the appellant knows the answer as he claims his innocence.
10. For the above reasons, taking into account the age of the appellant and the principles espoused in Francis Karioko Muruatetu V R SC Petition 15 & 16 of 2015 and CA CRA 93 of 2014 Jared Injiri Koita V Republic [2019] eKLR, I hereby resentence the Appellant Samwel Ongok Ongok to serve thirty (30) years imprisonment to be calculated from the date of sentence in the lower court on 5/12/2018.
11. Right of Appeal explained.
Dated, signed and Delivered at Siaya, this 5th Day of May, 2020 via skype due to Covid 19 situation.
R.E. ABURILI
JUDGE