Were v Republic [2022] KEHC 13724 (KLR)

Were v Republic (Criminal Petition E012 of 2022) [2022] KEHC 13724 (KLR) (5 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13724 (KLR)

Republic of Kenya

In the High Court at Siaya

Criminal Petition E012 of 2022

RE Aburili, J

October 5, 2022

Between

Geoffrey Indunyi Were

Petitioner

and

Republic

Respondent

(Being a Petition arising from Judgment, conviction and sentence in the Principal Magistrate’s court at Bondo in Criminal Case No. 624 of 2015 delivered on 13. 7.2015 by Hon. M. Obiero, Principal Magistrate and in Siaya HCRA No. 69/2015 by Hon. Justice J.A. Makau on 26. 11. 2015 Criminal Appeal 69 of 2015 )

Judgment

1. The Petitioner herein Geoffrey Indunyi Were was convicted on his own Plea of guilty for the offence of defilement contrary to Section 8(1) as read with Section 8(4) of the Sexual Offences Act. This was in Bondo PM SO No Case No 624 of 2015. He then appealed to the High Court at Kisumu but the file was transferred to Siaya vide HCRA 69/2015. During the hearing of his appeal, he abandoned the challenge against conviction and urged the court to consider reduction of sentence of 20 years imprisonment imposed on him.

2. The court, J Makau J, vide his judgment rendered on November 26, 2015, dismissed the appeal against sentence and upheld the 20 years imprisonment. The court opined, so correctly, that the law provided for minimum mandatory sentences which could not be interfered with by the court. The complainant was aged 14 years.

3. There is no indication as to whether the Applicant/Petitioner herein filed an appeal to the Court of Appeal.

4. He now petitions for resentencing, having served 7 years of the 20 years imprisonment claiming that he is remorseful, that he was of youthful age with many expectations in life.

5. He relies on the recent decisions by Odunga J (as he then was) on May 17th 2022 where the learned Judge, applying the principles espoused in the Francis Karioko Muruatetu case, held that the minimum mandatory sentences in sexual offences are unconstitutional.

6. The Petitioner avers that he is reformed, that he has acquired trainings in life skills, Biblical studies and Grade III, carpentry and joinery. He prays the least severe sentence prescribed and urges this court to further invoke the provisions of Section 333(2) of the Criminal Procedure Codeto consider the period he was in custody pending trial.

7. I have considered the petition which is not supported by any sworn affidavit. There is also no document or recommendation received from prisons authorities to indicate the petitioner’s level of reform and rehabilitation.

8. I am however alive to the fact that in constitutional petitions, a Petitioner may simply write a letter to court only that there must be evidence to support the assertions. I observe that the Petitioner pleaded guilty to the charge and was given a chance to mitigate. He pleaded for leniency. His age is not known as he has not disclosed it. There are also no testimonials to support his assertions.

9. I find the petition unsupported.

10. I dismiss it.

11. File closed.

DATED, SIGNED AND DELIVERED AT SIAYA THIS 5TH DAY OF OCTOBER, 2022R.E. ABURILIJUDGE