[2022] KEHC 13724 (KLR)
The court found that the petition for resentencing was unsupported by any affidavit, documentary evidence, or recommendation from prison authorities regarding the petitioner's alleged reformation or rehabilitation. The petitioner did not provide evidence of his age or testimonials to support his claims. While recent...
Source-derived case information.
- Citation
- [2022] KEHC 13724 (KLR)
- Parties
- Appellant: Geoffrey Indunyi Were; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Criminal Petition E012 of 2022
- Procedural Posture
- Criminal Petition / Judgment
- Outcome
- petition dismissed
- Judges
- RE Aburili
- Legal Topics
- Defilement Offence, Minimum Mandatory Sentence, Resentencing, Sexual Offences Act, Constitutional Challenge, Sentence Reduction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Geoffrey Indunyi Were
Appellant
Republic
Respondent
Procedural Posture
Criminal Petition / Judgment
Legal Issues
- 1 Whether the minimum mandatory sentence for defilement under the Sexual Offences Act is unconstitutional following recent jurisprudence.
- 2 Whether the petitioner is entitled to resentencing based on alleged reformation and time served.
- 3 Whether the period spent in custody pending trial should be considered under Section 333(2) of the Criminal Procedure Code.
Ratio Decidendi
The court found that the petition for resentencing was unsupported by any affidavit, documentary evidence, or recommendation from prison authorities regarding the petitioner's alleged reformation or rehabilitation. The petitioner did not provide evidence of his age or testimonials to support his claims. While recent jurisprudence has questioned the constitutionality of minimum mandatory sentences for sexual offences, the court held that, in the absence of supporting evidence, the petition could not succeed. The petition was therefore dismissed for lack of evidentiary support.
Court Disposition
petition dismissed
Orders
- The petition for resentencing is dismissed.
- File closed.
Full Case Text
Judgment text and source record
27 paragraphs
Were v Republic (Criminal Petition E012 of 2022) [2022] KEHC 13724 (KLR) (5 October 2022) (Judgment)
Neutral citation: [2022] KEHC 13724 (KLR)
Republic of Kenya
In the High Court at Siaya
Criminal Petition E012 of 2022
RE Aburili, J
October 5, 2022
Between
Geoffrey Indunyi Were
Petitioner
and
Republic
Respondent
(Being a Petition arising from Judgment, conviction and sentence in the Principal Magistrate’s court at Bondo in Criminal Case No. 624 of 2015 delivered on 13. 7.2015 by Hon. M. Obiero, Principal Magistrate and in Siaya HCRA No. 69/2015 by Hon. Justice J.A. Makau on 26. 11. 2015 Criminal Appeal 69 of 2015 )
Judgment
1. The Petitioner herein Geoffrey Indunyi Were was convicted on his own Plea of guilty for the offence of defilement contrary to Section 8(1) as read with Section 8(4) of the Sexual Offences Act. This was in Bondo PM SO No Case No 624 of 2015. He then appealed to the High Court at Kisumu but the file was transferred to Siaya vide HCRA 69/2015. During the hearing of his appeal, he abandoned the challenge against conviction and urged the court to consider reduction of sentence of 20 years imprisonment imposed on him.
2. The court, J Makau J, vide his judgment rendered on November 26, 2015, dismissed the appeal against sentence and upheld the 20 years imprisonment. The court opined, so correctly, that the law provided for minimum mandatory sentences which could not be interfered with by the court. The complainant was aged 14 years.
3. There is no indication as to whether the Applicant/Petitioner herein filed an appeal to the Court of Appeal.
4. He now petitions for resentencing, having served 7 years of the 20 years imprisonment claiming that he is remorseful, that he was of youthful age with many expectations in life.
5. He relies on the recent decisions by Odunga J (as he then was) on May 17th 2022 where the learned Judge, applying the principles espoused in the Francis Karioko Muruatetu case, held that the minimum mandatory sentences in sexual offences are unconstitutional.
6. The Petitioner avers that he is reformed, that he has acquired trainings in life skills, Biblical studies and Grade III, carpentry and joinery. He prays the least severe sentence prescribed and urges this court to further invoke the provisions of Section 333(2) of the Criminal Procedure Codeto consider the period he was in custody pending trial.
7. I have considered the petition which is not supported by any sworn affidavit. There is also no document or recommendation received from prisons authorities to indicate the petitioner’s level of reform and rehabilitation.
8. I am however alive to the fact that in constitutional petitions, a Petitioner may simply write a letter to court only that there must be evidence to support the assertions. I observe that the Petitioner pleaded guilty to the charge and was given a chance to mitigate. He pleaded for leniency. His age is not known as he has not disclosed it. There are also no testimonials to support his assertions.
9. I find the petition unsupported.
10. I dismiss it.
11. File closed.
DATED, SIGNED AND DELIVERED AT SIAYA THIS 5TH DAY OF OCTOBER, 2022R.E. ABURILIJUDGE