Nyondo v Republic [2023] KEHC 23320 (KLR)

Nyondo v Republic (Miscellaneous Criminal Application E192 of 2022) [2023] KEHC 23320 (KLR) (11 October 2023) (Ruling)

Neutral citation: [2023] KEHC 23320 (KLR)

Republic of Kenya

In the High Court at Mombasa

Miscellaneous Criminal Application E192 of 2022

A. Ong’injo, J

October 11, 2023

Between

Juma Rai Nyondo

Applicant

and

Republic

Respondent

(Arising from Mariakani Senior Principal Magistrate's Court Criminal Case No. 144 of 2013. )

Ruling

1. The applicant Juma Rai Nyondo was charged in Mariakani Senior Principal Magistrate's Court Criminal Case No. 144 of 2013 with the offence of defilement contrary to Section 8(1) as read with section 8(4) of the Sexual Offences Act No. 3 of 2006, and an alternative charge of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act No. 3 of 2006. The applicant was found guilty and sentenced to serve 15 years imprisonment.

2. The application filed on 29th July 2022 seeks that the sentence be reviewed in consideration of the period spent in custody and his mitigating factors.

3. The applicant cited the case ofBaragoi Rotiken v Republic, Misc. Criminal Application No. E014 of 2021, High Court Narok where the applicant was given a chance for resentencing and the life sentence was substituted with 25 years imprisonment. The applicant contended that Section 216 and 329 of the Criminal Procedure Code limits the second appeal to convictions only, if not set aside by 1st appellate court, the mandatory minimum nature of 15 years sentence therefore violates the right to fair hearing under Article 50 (2) (q) of theConstitution 2010. The applicant further stated that Section 354 of the Criminal Procedure Code entitles any person who has undergone a criminal trial to appeal to or seek a judicial review from a high court.

4. The applicant’s mitigation in this application is that he was a first offender, a family man with two housewives and 7 children, that he is 45 years old and of good conduct, and that he spent over 9 years in custody since his arrest.

5. This court has not seen records of the lower court to determine if the trial court considered mitigation in sentencing. However, the applicant has served substantial part of the sentence and will therefore be placed on probation for the remainder of the sentence of 2 years.

DATED, SIGNED AND DELIVERED IN OPEN COURT/ONLINE THROUGH MS TEAMS, THIS 11TH DAY OF OCTOBER 2023HON. LADY JUSTICE A. ONG’INJOJUDGEIn the presence of: -Ogwel- Court AssistantMr. Ngiri for RespondentApplicant present in person