Otieno v Republic [2022] KEHC 3272 (KLR)

Otieno v Republic (Miscellaneous Criminal Application E046 of 2021) [2022] KEHC 3272 (KLR) (13 July 2022) (Ruling)

Neutral citation: [2022] KEHC 3272 (KLR)

Republic of Kenya

In the High Court at Kisumu

Miscellaneous Criminal Application E046 of 2021

FA Ochieng, J

July 13, 2022

Between

George Ogolla Otieno

Applicant

and

Repbulic

Respondent

Ruling

1. The petitioner, George Ogolla Otienowas convicted for the offence of Defilement contrary to section 8 (1) as read with section 8 (2) of the Sexual Offences Act. He was then sentenced to Life Imprisonment. He appealed to the High Court and the appeal was dismissed.

2. Thereafter, he filed a second appeal at the Court of Appeal. The said appeal was also dismissed.

3. He has now moved the High Court to hold that the Life Imprisonment is not appropriate, as it was harsh and excessive. He therefore asked the court to review the sentence, and determine a more lenient sentence.

4. The petitioner invited the court to give consideration to the mitigation factors when handing down the appropriate sentence. He pointed out that he was a first offender; and that he was remorseful. Furthermore, during his stay in prison, he had been rehabilitated and reformed. He described himself as a person of good character; a law abiding citizen; and a born-again Christian.

5. The petitioner exhibited the Certificates issued to him by The Gospel Faith Messenger Ministry, and by Prison Fellowship Kenya.

6. Finally, the petitioner invoked the provisions of section 333 (2) of the Criminal Procedure Code when determining the period he should serve the sentence. According to him, the fact that he had been in custody since 2010, should be taken into account.

7. Ms. Odumba, Learned Prosecution Counsel appreciated that the Petitioner had already been in prison custody for eleven (11) years so far. However, as the Petitioner was sentenced to Life Imprisonment, the respondent submitted that section 333 (2) of the Criminal Procedure Codewould not be applicable to his case.

8. I share the view expressed by the respondent, as in Kenya a sentence of Life Imprisonment has not been defined by way of duration.

9. I am aware that there are jurisdictions in which Life Imprisonment has been defined by duration of say 25 or 30 years. In such jurisdictions, it would be possible to give effect to section 333 (2) of the Criminal Procedure Code, so that when computing the actual duration of the actual period to be served, the prison authorities would be required to give credit for such period as the convict had spent in custody during the time he was still on trial.

10. In Kenya, a sentence of Life Imprisonment literally means that the convict would remain behind bars until he breathed his last.

11. Issues which the petitioner has raised with respect to mitigation are not of any importance to him at this stage. I so find because mitigation is usually accorded appropriate consideration at the time when the trial court was hand sentence. In this case, if the trial court had failed to take the mitigation into account, the petitioner ought to have taken up that matter when he lodged his appeals.

12. Finally, when the petitioner had already exercised his right to appeal, I find that it was inappropriate for him to re-visit issues which ought to have been canvassed through the said appeals, through a subsequent petition seeking the review of a decision that had been rendered by the trial court.

13. In the result, the application is rejected.

DATED, SIGNED AND DELIVERED AT KISUMU THIS 13TH DAY OF JULY 2022. FRED A. OCHIENGJUDGE