[2020] KEHC 7547 (KLR)
The court found that the sentence of detention at the President's Pleasure imposed on the petitioner, who was a juvenile at the time of conviction, was unconstitutional. The court considered the period already served, the petitioner's rehabilitation, and his potential for a productive life outside prison. Taking...
Source-derived case information.
- Citation
- [2020] KEHC 7547 (KLR)
- Parties
- Petitioner: Thomas Okoth Odede; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Judgment Date
- 12 March 2020
- Case Number
- Petition 69 of 2019
- Procedural Posture
- Constitutional Petition / Judgment
- Outcome
- petition allowed; petitioner resentenced to period already served
- Judges
- TW Cherere
- Legal Topics
- Resentencing, Juvenile Offenders, Unconstitutional Sentences, Detention at Presidents Pleasure
- Source Language
- english
Source-derived case record
Summary, issues, holding and outcome
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Parties
Thomas Okoth Odede
Petitioner
Republic
Respondent
Procedural Posture
Constitutional Petition / Judgment
Legal Issues
- 1 Whether the sentence of detention at the President's Pleasure imposed on a juvenile is unconstitutional.
- 2 Whether the petitioner is entitled to resentencing considering the period already served and his rehabilitation.
Ratio Decidendi
The court found that the sentence of detention at the President's Pleasure imposed on the petitioner, who was a juvenile at the time of conviction, was unconstitutional. The court considered the period already served, the petitioner's rehabilitation, and his potential for a productive life outside prison. Taking into account the mitigating circumstances, including the petitioner's age at the time of the offence, his good conduct in prison, and the skills acquired during incarceration, the court determined that the appropriate remedy was to re-sentence the petitioner to the period already served, thereby securing his immediate release.
Court Disposition
petition allowed; petitioner resentenced to period already served
Orders
- The petitioner is resentenced to the period already served.
- The petitioner shall be released from prison forthwith unless otherwise lawfully held.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISUMU
(CORAM: CHERERE- J.)
PETITION NO. 69 OF 2019
BETWEEN
THOMAS OKOTH ODEDE..................................................PETITIONER
AND
REPUBLIC............................................................................RESPONDENT
JUDGMENT
1. THOMAS OKOTH ODEDE, (Petitioner) was charged in Kisumu High Court Criminal Murder Case No. 16 of 1998with the offence of murder contrary to Section 203as read with Section 204of the Penal Code.On 19th July, 2001, the Petitioner was convicted and ordered to be detained at the President’s Pleasure because he was 15 years old.
2. By a petition filed on 06th November, 2019, the Petitioner has petitioned this court for resentencing on the main ground that the sentence imposed on him is unconstitutional.
3. Ms. Gathu, Senior Prosecution Counsel for the state did not oppose the application for resentence but proposed that Petitioner be resentenced to 20 years’ imprisonment.
Analysis and Determination
4. Under the proviso to section 333(2) of the Criminal Procedure Code (Chapter 75 of the Laws of Kenya), the court in resentencing a Petitioner is entitled to take into account the period the petitioner has spent in custody in determining the sentence and mitigating and aggravating circumstances.
5. The court record shows that the Petitioner was charged in 1998 and was convicted 3 years later in 2001. He has served 19 years within which time he has obtained three certificates in Bible Studies attained Grade 1 certificate as a tailor. The officer in charge Naivasha Maximum Prison has been his letter dated 20. 09. 19 vouched for Petitioner’s good conduct.
6. The Petitioner who was 12 years at the time of arrest and 15 years at the time of his conviction is now 34 years. He has lived more than half of his life in prison.
7. I have considered that the Petitioner has the potential for productive life outside prison. I therefore re-sentence him to period already served.
DATED AND SIGNED IN KISUMU THIS 12th DAY OF March 2020
T. W. CHERERE
JUDGE
Read in open court in the presence of-
Court Assistant- Amondi
Petitioner- Present in person
For the State- Ms. Gathu