OKEROSI MWENCHA ALIAS OGINGA v REPUBLIC [2008] KEHC 3000 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

OF KISII

Criminal Appeal 204 of 2006

OKEROSI MWENCHA ALIAS OGINGA …………. APPELLANT

VERSUS

REPUBLIC ………………………………...……... RESPONDENT

(From original conviction and sentence in the Resident Magistrate’s Court at Kehancha, Criminal Case no.1176 of 2005 by M. K. K. SEREM, RM)

JUDGMENT

On 10th January, 2006 the appellant was convicted of the charges of indecent assault of a female and assault causing actual bodily harmcontrary tosections 144(1)and251of thePenal coderespectively.He was sentenced to 10 years’ imprisonment on the first count and 5 years’ imprisonment on the second count.  The sentences were to run concurrently.  He was aggrieved by the said sentence and preferred an appeal to this court.

Mr. Kemo, Principal State Counsel, conceded the appeal, and in my view rightly so, on the basis that the learned trial magistrate was a Resident Magistrate at the time.  Section 7 of the Criminal Procedure Code does not allow such a magistrate to pass a sentence exceeding 7 years’ imprisonment except for offences under sections 278, 308(1) 322 of the Penal Code or under the Sexual Offences Act, 2006 which came into operation on 21st July 2006.  The trial court did not have jurisdiction to pass the sentence which it did.

The appellant has been in custody for more than two years.  He has been punished sufficiently and I believe he has also had time to reflect on his actions.  I allow the appeal and reduce the sentence to the period already served.  The appellant is set at liberty unless otherwise lawfully held.

DATED, SIGNED AND DELIVERED at Kisii this 7th day of March 2008.

D. MUSINGA

JUDGE.

Judgment delivered in open court.

Accused present.

Mr. Kemo for the Republic

D. MUSINGA

JUDGE