Omondi v Republic [2022] KEHC 14027 (KLR)

Omondi v Republic (Miscellaneous Criminal Application E082 of 2022) [2022] KEHC 14027 (KLR) (12 October 2022) (Ruling)

Neutral citation: [2022] KEHC 14027 (KLR)

Republic of Kenya

In the High Court at Siaya

Miscellaneous Criminal Application E082 of 2022

RE Aburili, J

October 12, 2022

Between

Fredrick Okoth Omondi

Applicant

and

Republic

Respondent

(Being an Application seeking resentence from Judgment, conviction and sentence in the Chief Magistrate’s court at Siaya in Sexual Offence No. 6/2020 delivered by Hon. L. Simiyu, Principal Magistrate on 17. 1.2020)

Ruling

1. The applicant was convicted on his own plea of guilty vide Siaya CM SO 6/2020 and sentenced to serve 15 years imprisonment for the offence of defilement contrary to Section 8 (1) as read with Section 8 (4) of the Sexual Offences Act. The minor was aged 17 years old. Sentence was passed on 17/1/2020 after he mitigated. The victim of the offence was mentally deranged and accused/convict herein took advantage of her.

2. In his mitigation, he pleaded for leniency. The convict now, relying on Machakos HC Court Petition No. E017/2022 seeks for resentencing on account that the Mandatory Minimum sentence imposed on him is unconstitutional. He claims that his right to mitigate was reduced ineffective. He further seeks for the court to invoke Section 333 (2) of the Criminal Procedure Code in resentencing him although he was arrested on 16/1/2020 and sentenced on 17/1/2020 which was one day in custody.

3. He claims that he is married and the act was done under consent hence his long incarceration will affect his life and the nation’s development.

4. I agree that mandatory minimum sentence deprive the court of inherent discretion in sentencing and also deny convict the right to mitigate. However, where the court has accorded a convict the opportunity to mitigate as was in this case and having regard to the circumstances of each case, the court may impose a suffer penalty.

5. The victim suffers from a mental disability. She is vulnerable and unable to defend herself. The convict took advantage of her. He deserved a stiffer punishment.

6. I find no reason to interfere with the penalty imposed on the convict as he is a serious danger to the most venerable members of the society especially those with disabilities.

7. I find the application for resentencing to be devoid of merit. It is hereby dismissed.

8. File closed.

DATED, SIGNED AND DELIVERED AT SIAYA THIS 12TH DAY OF OCTOBER, 2022R.E. ABURILIJUDGE