Gafo v Republic [2024] KEHC 2450 (KLR)

Gafo v Republic (Miscellaneous Criminal Application E110 of 2023) [2024] KEHC 2450 (KLR) (8 March 2024) (Ruling)

Neutral citation: [2024] KEHC 2450 (KLR)

Republic of Kenya

In the High Court at Mombasa

Miscellaneous Criminal Application E110 of 2023

A. Ong’injo, J

March 8, 2024

Between

Issack Gafo

Applicant

and

Republic

Respondent

Ruling

1. The Applicant was charged with the offence of defilement of a child contrary to Section 8 (1) as read with 8 (2) of the Sexual Offences Act No. 3 of 2006 in Mombasa Chief Magistrates Court Criminal Case No. 2396 of 2013.

2. The Applicant was found guilty, convicted and sentenced to serve 25 years imprisonment on 1st July 2015 by Hon. J. Kamau (RM). Aggrieved by the conviction and sentence, the applicant filed an appeal, HCCR App No. 134 of 2015 which was withdrawn to pave way for review of his sentence herein.

3. Vide an application filed on 20th July 2023 pursuant to Sections 216, 329, 354, 362, 333(2) of the Criminal Procedure Code, Articles 25 (a) & (c) of the Constitution of Kenya 2010, Section 8 (1) as read with 8 (2) of the Sexual Offences Act, and the Sentencing Policy Guidelines, the Applicant now seeks for a review of his sentence in consideration of mitigating factors that he has indicated in his application namely: -i.That the applicant did not have any criminal record when being sentenced.ii.That the applicant was young aged 25 years and showed remorse.iii.That the applicant has been in custody for a period of over 9 years with good reputation.

4. The trial court file Mombasa Chief Magistrates Court Criminal Case No. 2396 of 2013 could not be traced for perusal by this court. However, the Sentence Review Report prepared by David Chiko Gambo, the Senior Probation Officer on 21st November 2023, was filed herein on 22nd February 2024. This court has established that the applicant was sentenced when he was in his early twenties. He has been in custody for 10 years 8 months and after remission, he has approximately 6 years to serve, having considered the remand period pursuant to Section 333 (2) of the Criminal Procedure Code.

5. This court finds that Section 8 (2) of the Sexual Offences Act under which the Applicant was charged provides for a sentence of life imprisonment. However, the trial court was lenient and gave determinate sentence of 25 years imprisonment was lawful. However, in consideration that he was in his early 20s, the remainder of his sentence is substituted with 5 years. He is to serve 2 years in custody and 3 years on probation.

DATED, SIGNED AND DELIVERED IN OPEN COURT/ONLINE THROUGH MS TEAMS, THIS 8TH DAY OF MARCH 2024HON. LADY JUSTICE A. ONG’INJOJUDGEIn the presence of: -Etropia- Court AssistantMr. Ngiri for the RespondentApplicant present in personHON. LADY JUSTICE A. ONG’INJOJUDGE