Opiyo v Republic [2023] KEHC 24518 (KLR)

Opiyo v Republic (Miscellaneous Criminal Application E025 of 2023) [2023] KEHC 24518 (KLR) (30 October 2023) (Ruling)

Neutral citation: [2023] KEHC 24518 (KLR)

Republic of Kenya

In the High Court at Siaya

Miscellaneous Criminal Application E025 of 2023

DO Ogembo, J

October 30, 2023

Between

Kevin Otieno Opiyo

Applicant

and

Republic

Respondent

(Being an application for review of the sentence passed by the PM’s Court, Ukwala Criminal Case No. 40 of 2018. )

Ruling

1. The applicant, Kevin Otieno Opiyo, has moved this court by way of a Notice of Motion application filed herein on 16-6-2023. The same is brought under various provisions of the Constitution including Articles 19, 20(1)(2), 23(1), 27, 28, 50(2) and Sections 216 and 329 of the Criminal Procedure Code. The application seeks that this court reviews the sentence of the applicant as passed by the PM’s Court, Ukwala, in Criminal Case No. 40 of 2018.

2. In the Affidavit of the applicant attached to the application, it has been deponed that his right to mitigate under Sections 216 and 329 of the Criminal Procedure Code was rendered ineffective during sentencing by the nature of the sentence.

3. The Respondent has gone on to submit that he has reformed and done several theological courses while in remand. He has expressed remorse. He has also sought revision under Section 333(2) of the Penal Code.

4. The Prosecution opposes this application on grounds that this court already dealt with this case and the recourse available to the applicant is to appeal to the Court of Appeal.

5. I have considered this application of the applicant. I have also considered the submissions of both the applicant and the Respondent. This application is basically for revision of sentence. Section 362 of the Criminal Procedure Code provides;“The High court may call for and examine the record of any proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any such subordinate court."

6. The onus is on the applicant to show any such incorrectness, illegality or impropriety in the orders of the subordinate court, he is aggrieved of. Whereas the applicant has not shown any such incorrectness, irregularity or impropriety in the aggrieved orders, this court has duly considered the record of the proceedings of the lower court relevant to this application.

7. On 12-9-2018, the applicant was charged with the offence of Defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act No. 3 of 2006. He was convicted of the same and sentenced to serve 20 years imprisonment. This was on 17. 12. 2018.

8. Section 8(3) of the Sexual Offences Act, provides;“A person who commits an offence of defilement with a child between the age of 12 and 15 years is liable upon conviction to imprisonment for a term of not less than 20 years”

9. The sentence of 20 years imprisonment as meted out by the trial court was therefore legal and proper. It is the maximum sentence provided for in law for the offence the applicant was convicted of. Following several authorities of the superior courts (e.g. Philip Mueke Maingi Vs R (Machakos Pet. No. 3(2006), the trial court retained its discretion in sentencing. It need not have sentenced the applicant by meting out the most severe sentence on him. It ought to have considered the mitigation of the applicant and meted out on appropriate sentence taking into account the nature of the charge and the mitigation raised by the applicant.

10. It is for this reason that I find merit in this application of the applicant for revision of sentence. Taking into account the circumstances of this case, I revise the sentence herein. The applicant is sentenced to serve 15 years imprisonment. This sentence shall run from 12-9-2018, the date applicant was first arraigned in court (pursuant to Section 333(2) of the Criminal Procedure Code). It is so ordered.

DATED, SIGNED AND DELIVERED AT SIAYA THIS 30TH DAY OF OCTOBER, 2023D.O. OGEMBOJUDGE30. 10. 2023Court:Ruling read out in Open court in presence of the Applicant (from Kisumu Maximum Prison) and Ms. Mumu for the State.D.O. OGEMBOJUDGE30. 10. 2023