David Ochami Odinga v Republic [2020] KEHC 8231 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KISUMU

PETITION NO.71 OF 2019

(CORAM: CHERERE- J.)

BETWEEN

DAVID OCHAMI ODINGA.........................................PETITIONER

AND

REPUBLIC...................................................................RESPONDENT

JUDGMENT

Introduction

1.  On 06th September, 2015, the trial court in MASENO CRIMINAL CASE NO. 49 OF 2015, convicted and sentenced Petitioner to 20 years’ imprisonment for the offence of defilement contrary to Section 8(1) as read with section 8(3) of the Sexual Offences Act No. 3 of 2006.

2. Petitioner lodged an appeal KISUMUHIGH COURT CRIMINAL APPEAL NO. 88 OF 2015 which by a judgment dated 14th December, 2015 upheld the conviction and sentence.

3. The Petitioner did not appeal to the Court of Appeal.

4. The Petitioner has petitioned this court for resentencing. He has trained and obtained various certificates and diplomas in Bible studies as a means of rehabilitation.

5. Ms. Gathu, Senior Prosecution Counsel for the state appreciated that the Petitioner had prepared himself for integration with the public and recommended that he be resentenced to 10 years.

Analysis and Determination

6.  At the time of the petitioner’s conviction, mandatory sentences had not been declared unconstitutional.

7. The Supreme Court’s decision in Francis Karioki Muruatetu & Another v Republic & 5 others [2016] eKLR declaring the mandatory death sentence unconstitutional has necessitated resentencing of all persons previously sentenced to the mandatory sentences.

8. I have considered The Sentencing Policy Guidelines, 2016and its application which is intended to promote transparency, consistency and fairness in sentencing (See Michael Kathewa Laichena & another v Republic [2018] eKLR).

9. In Dismas Wafula Kilwake v Republic [2018] eKLR, the Court of Appeal set out the factors to be considered in sentencing under the Act. It observed as follows:

[W]e hold that the provisions of section 8 of the Sexual Offences Act must be interpreted so as not to take away the discretion of the court in sentencing. Those provisions are indicative of the seriousness with which the Legislature and the society take the offence of defilement. In appropriate cases therefore, the court, freely exercising its discretion in sentencing, should be able to impose any of the sentences prescribed, if the circumstances of the case so demand. On the other hand, the court cannot be constrained by section 8 to impose the provided sentences if the circumstances do not demand it. The argument that mandatory sentences are justified because sometimes courts impose unreasonable or lenient sentences which do not deter commission of the particular offences is not convincing, granted the express right of appeal or revision available in the event of arbitrary or unreasonable exercise of discretion in sentencing.

10. Even though Appellant was a first offender, the psychological effect of the offences on the 14-year-old complainant cannot be underestimated.

11.  The Appellant has served 5 years. He has expressed remorse and has been rehabilitated. I re-sentence him to 10 years from  06th September, 2015 when he was convicted.

DELIVERED AND SIGNED IN KISUMU THIS  20thDAY OF February, 2020

T. W. CHERERE

JUDGE

In the presence of-

Court Assistant  - Amondi/Okodoi

Petitioner   -  Present in person

For the State  - Ms. Gathu