SS v Republic [2022] KEHC 16712 (KLR)

SS v Republic (Miscellaneous Criminal Application E102 of 2022) [2022] KEHC 16712 (KLR) (1 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16712 (KLR)

Republic of Kenya

In the High Court at Mombasa

Miscellaneous Criminal Application E102 of 2022

A. Ong’injo, J

December 1, 2022

Between

SS

Applicant

and

Republic

Respondent

Ruling

1. The Applicant SS was charged in Malindi Chief Magistrate’s Court Sexual Offence Case No 2 of 2010 with the offence of incest contrary to Section 20 (1) of the Sexual Offences Act No 3 of 2006.

2. Particulars of the offence were that on diverse dates between September and October 2009 at [Particulars Wthheld] area within Malindi District of the Coast Province did an act that caused penetration of his genital organ to the female genital organ of DSS a girl aged 15 ½ years who was to his knowledge his daughter.

3. The applicant was convicted and after he gave his mitigation, the trial magistrate said the offence was serious and more so it was committed against a defenceless girl. That the complainant suffered psychological trauma which she has to live with for the rest of her life. That a deterrent sentence is called for. The applicant was sentenced to serve life imprisonment.

4. The applicant appealed to the High Court Criminal Appeal No 113 of 2010 which was dismissed. The applicant’s second appeal was in Kenya Court of Appeal Criminal Appeal No 43 of 2019 where judgment was delivered on July 9, 2021 which was dismissed appeal on conviction but being guided by the Muruatetu decision and Christopher Ochieng v Republic where the judges of the court of appeal were satisfied that life imprisonment meted upon the applicant by the trial court and upheld by the High Court could not stand. They set aside the life imprisonment and having considered the applicant’s mitigation proffered by him on record substituted the same with 30 years imprisonment with effect from September 10, 2010 when the trial court imposed the sentence.

5. The applicant’s mitigation was heard by the trial magistrate who considered gravity of the offence and felt that appropriate sentence was life imprisonment. The court of appeal considered the mitigation of the applicant on record and substituted his sentence to 30 years imprisonment.

6. The applicant’s mitigation had already been considered. His complaint that he was not given fair hearing due to mandatory nature of the sentence and trial magistrate having failed to exercise discretion due to the mandatory and unconstitutional sentences does not arise.

7. The application is dismissed save that he should benefit from the provisions of Section 333 (2) of the Criminal Procedure Codeas it appears he was in remand custody throughout his trial. The 30 years sentence should therefore take effect from January 18, 2010 if not already factored in.

DATED, SIGNED AND DELIVERED IN OPEN COURT/ONLINE THROUGH MS TEAMS, THIS 1ST DAY OF DECEMBER 2022HON. LADY JUSTICE A. ONG’INJOJUDGEIn the presence of: -Ogwel- Court AssistantMs. Kambaga for RespondentApplicant present in person