Kelvin Motanya Orangi v Republic [2022] KEHC 26963 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

APPELLATE SIDE

(Coram: Odunga, J)

CRIMINAL APPEAL NO. E001 OF 2020

KELVIN MOTANYA ORANGI.....................................................APPELLANT

VERSUS

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

(Being an Appeal from the Judgment and Sentence of Hon G Shikwe - SRMin the Senior Resident Magistrates Court at Kithimani delivered on the 18th day of May, 2020 in Criminal Case (S.O) No 21 of 2018)

BETWEEN

REPUBLIC.........................................................................COMPLAINANT

VERSUS

KELVIN MOTANYA ORANGI...................................................ACCUSED

SENTENCE

1. On 3rd November, 2021, this Court allowed the Appellant’s Appeal in respect of the offence of defilement and substituted therefor the offence of sexual assault contrary to section 5(1)(a)(1) as read with section 5(2) of the Sexual Offences Act.

2. Before sentencing the Appellant, the Court directed that a sentencing report be prepared. According the probation officer file her report dated 24th November, 2022 which is on record. According to the said report, the victim of the offence is still emotional about the incident which negatively affected her esteem and her family insisted that justice be served as per the decision of the lower court which sentenced the appellant to 20 years imprisonment.

3. On the other hand, the appellant’s family as well as the community’s attitude was positive towards the Appellant.

4. I have considered the said report. Section 5(1)(a) (1) and (2) of the Sexual Offences Act under which the appellant was convicted provides as follows:

(1) Any person who unlawfully—

(a) penetrates the genital organs of another person with—

(i) any part of the body of another or that person; or

(ii) an object manipulated by another or that person except where such penetration is carried out for proper and professional hygienic or medical purposes;

(b) manipulates any part of his or her body or the body of another person so as to cause penetration of the genital organ into or by any part of the other person’s body, is guilty of an offence termed sexual assault.

(2) A person guilty of an offence under this section is liable upon conviction to imprisonment for a term of not less than ten years but which may be enhanced to imprisonment for life.

5. Accordingly, I sentence the Appellant to the minimum sentence of 10 years. The appellant was arrested on 6th June, 2018. Though he was admitted to bond, he was unable to secure his release. Pursuant to section 333(2) of the Criminal Procedure Code I direct that his sentence shall run from 6th June, 2018. Of course, subject to good behaviour while in prison he may benefit from remission.

6. It is so ordered.

READ, SIGNED AND DELIVERED IN OPEN COURT AT MACHAKOS THIS 3RD DAY OF MARCH, 2022.

G V ODUNGA

JUDGE

IN THE PRESENCE OF:

THE APPELLANT IN PERSON ONLINE

MR NGETICH FOR THE RESPONDENT ONLINE

CA SUSAN