Okemwa v Republic [2022] KEHC 16282 (KLR)

Okemwa v Republic (Criminal Appeal E080 of 2019) [2022] KEHC 16282 (KLR) (Crim) (10 November 2022) (Ruling)

Neutral citation: [2022] KEHC 16282 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Criminal Appeal E080 of 2019

JM Bwonwong'a, J

November 10, 2022

Between

John Okemwa

Appellant

and

Republic

Respondent

(Being an appeal against judgement of Hon. J. Kibosia, SRM, dated 30/11/2018 in Makadara Chief Magistrate’s Court in Criminal Case No. 147 of 2016, Republic v John Okemwa)

Ruling

1. The appellant has applied for revision of his sentence of ten years imprisonment in respect of the offence of attempted defilement contrary to section 9 (1) as read with section 9 (2) of the Sexual offences Act No 3 of 2006.

2. During oral arguments in this court, the appellant submitted that he only wants the court to reduce the sentence by taking into account the period he was in remand when his trial was conducted.

3. He further submitted that he was in pre-trial remand custody for two years.

4. Ms Edna Ntabo, counsel for the respondent submitted that the sentence imposed was the prescribed mandatory minimum sentence of ten years imprisonment. She further submitted that the court ought to pronounce itself on the appropriate sentence.The appellant was arrested on October 23, 2016. He was convicted on of that offence on November 2, 2018. He was sentenced on November 30, 2018.

5. In sentencing the appellant, the trial court pronounced it self as follows:“I have considered the mitigation by the accused person and the social inquiry report on record. Unfortunately, my hands are tied. The sentence is mandatory in nature.Accused is hereby sentenced to 10 years imprisonment.”

6. It is clear from the sentencing notes of the trial court that the pre-trial remand period was not considered. Under section 333 (2) of the Criminal Procedure Code (cap 75) laws of Kenya, the trial court was also mandatorily required to take into account the pre-trial remand period of two years. In other words, the prescribed mandatory minimum of ten years is subject to section 333 (2) of the Criminal Procedure Code; since these provisions override the prescribed mandatory minimum of ten years.

7. It therefore follows that I am entitled to interfere with the sentencing discretion of the trial court. I hereby proceed to do so by directing that the appellant is now to serve a sentence of ten years less the two years he was in pre-trial custody.

8. The sentence of ten years less two years will begin to run from the date of conviction and not from the date of sentence.

9. The appellant’s appeal partially succeeds to that extent only.

JUDGEMENT SIGNED, DATED AND DELIVERED IN OPEN COURT AT NAIROBI THIS 10TH OF NOVEMBER 2022. JM BWONWONG’AJUDGEIn the presence of-Mr Kinyua: Court AssistantThe appellant in person.Ms Chege for the respondent.