[2022] KEHC 16438 (KLR)
The court held that the applicant's request for further sentence adjustment based on mitigating factors and recent case law was unsustainable because the sentence had already been reviewed and substituted on appeal, and the issue was therefore res judicata. However, the court found that the applicant was entitled to...
Source-derived case information.
- Citation
- [2022] KEHC 16438 (KLR)
- Parties
- Applicant: Douglas Tito; Respondent: Republic (Through DPP)
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E179 of 2022
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Sentence Adjustment
- Outcome
- Application for further sentence adjustment dismissed; sentence to run from date of first remand in custody.
- Judges
- A. Ong’injo
- Legal Topics
- Sentencing Review, Sexual Offences, Mitigation Factors, Application of Section 333 2 Cpc
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Douglas Tito
Applicant
Republic (Through DPP)
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Application for Sentence Adjustment
Legal Issues
- 1 Whether the applicant is entitled to a further adjustment of his sentence in light of mitigating factors and recent jurisprudence.
- 2 Whether the applicant is entitled to have the period spent in custody before sentencing considered under section 333(2) of the Criminal Procedure Code.
Ratio Decidendi
The court held that the applicant's request for further sentence adjustment based on mitigating factors and recent case law was unsustainable because the sentence had already been reviewed and substituted on appeal, and the issue was therefore res judicata. However, the court found that the applicant was entitled to benefit from section 333(2) of the Criminal Procedure Code, which requires that the period spent in custody prior to sentencing be taken into account. As the applicant had been in custody since June 22, 2015, the 30-year sentence imposed on appeal should run from that date, ensuring compliance with statutory requirements and fairness in sentencing.
Court Disposition
Application for further sentence adjustment dismissed; sentence to run from date of first remand in custody.
Orders
- The application for further adjustment of sentence is dismissed as the issue has already been adjudicated upon.
- The applicant's 30-year sentence shall run from June 22, 2015, in accordance with section 333(2) of the Criminal Procedure Code.
Full Case Text
Judgment text and source record
25 paragraphs
Tito v Republic (Through DPP) (Miscellaneous Criminal Application E179 of 2022) [2022] KEHC 16438 (KLR) (22 November 2022) (Ruling)
Neutral citation: [2022] KEHC 16438 (KLR)
Republic of Kenya
In the High Court at Mombasa
Miscellaneous Criminal Application E179 of 2022
A. Ong’injo, J
November 22, 2022
Between
Douglas Tito
Applicant
and
Republic (Through DPP)
Respondent
Ruling
1. The applicant Douglas Tito was accused in Shanzu Senior Principal Magistrates Court CR case no 728 of 2015 with the offence of defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act no 3 of 2006.
2. Particulars were that on June 13, 2015 at [particulars withheld] area in [particulars withheld] Sub-County within Mombasa County the applicant intentionally and unlawfully caused his penis to touch the vagina of SKK a girl aged 8 years.
3. The trial Magistrate Hon A Ndungu SRM found him guilty and he was convicted and sentenced to serve life imprisonment on September 28, 2017. The applicant lodged and appeal against conviction & sentence in Mombasa HC CR A no 70 of 2018 and the conviction was upheld and taking into consideration the Koita Injiri case reviewed the sentence of life imprisonment imposed and substituted it with a sentence of 30 years in prison from the date the applicant was sentenced.
4. In the review the judge put into consideration that the applicant committed a heinous crime by preying on his estranged wife’s younger sister who was only 8 years old after her mother allowed her to accompany the applicant and his sons, to his house at Bamburi. Such an act is an abomination which makes the appellant an offender who deserves a deterrent sentence for a long time behind the walls and gates of prison to keep young girls safe from his hideous ways.
5. This appeal was determined on May 12, 2020. The applicant has now come to this court seeking that his sentence be adjusted accordingly in consideration of the mitigating factors he has given in his application namely:- He has lived well with the fellow inmates
That the prisons authority have commended him in terms of character and Jared Koita Injiri v Republic [2019] eKLR – the Court of Appeal stated as follows:-
“…in this case the appellant was sentenced to life Imprisonment on the basis of the mandatory sentence stipulated by section 8(1) of the Sexual Offences Act and if the reasoning in the supreme court case was applied to this provision, it too should be considered in constitutional on the same basis.The appellant was provided an opportunity to mitigate in the trial court where it was stated that he was a 1st offender. He pleaded for leniency. However, it cannot be overlooked that the appellant committed a heinous crime & occasioned severe trauma & suffering to a young girl.His actions have demonstrated that around him, young and vulnerable children like the complainant could be in jeopardy”
6. Concerning the application to adjust sentence in accordance with Muruatetu, Phillip Mueke and Jared Koita Injiri holdings this court is of the view that the review was already done in the appeal lodged by the applicant and is therefore already adjudicated upon. That application cannot therefore be sustained.
7. This court has gone through the proceedings in trial court and established that although applicants bond terms were renewed from Kshs 300,000/= to Kshs 100,000/= with a surety he was not able to secure his release on bond. It is then follows that his trial took place while he was in custody & is therefore entitled to benefit under section 333(2) of the Criminal Procedure Code. The 30 years sentence should therefore run from June 22, 2015.
8. Orders accordingly.
RULING DATED, SIGNED AND DELIVERED AT MOMBASA THIS 22ND DAY OF NOVEMBER 2022 BY MICROSOFT TEAMS/OPEN COURTHON. LADY JUSTICE A. ONG’INJOJUDGEIn the presence of:-Ogwel – Court Asst.Ms. Kambaga for State/RespondentApplicant – Present in person online from Shimo La Tewa.Hon. Lady Justice A. Ongi’injo J22/11/2022