REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISUMU

PETITION NO.63 OF 2019

(CORAM: CHERERE- J.)

BETWEEN

JACOB ODHIAMBO OMUMBO.....................................…PETITIONER

AND

REPUBLIC............................................................................RESPONDENT

JUDGMENT

INTRODUCTION

1. JACOB ODHIAMBO OMUMBO, (Petitioner) was sentenced on 17^th August, 2007 to life imprisonment in NYANDO CRIMINAL CASE NO. 244 OF 2007, for the offence of defilement contrary to Section 8(1) as read with section 8(2) of the Sexual Offences Act No. 3 of 2006.

2. Petitioner lodged an appeal KISUMU HIGH COURT CRIMINAL APPEAL NO. 133 OF 2007 which by a judgment dated 12^th March, 2008 upheld the conviction and sentence.

3. The Petitioner subsequently appealed to the Court of Appeal in KISUMU CRIMINAL APPEAL NO. 80 OF 2008 which by a judgment dated 05^th December, 2008 similarly upheld the conviction sentence.

4. The Petitioner has petitioned this court for resentencing. He expressed remorse and stated that he was arrested at the age of 35 years and had served 9 years since conviction within which time he has been trained in upholster and tailoring and obtained Grades III, II and I and Grade II in masonry as a means of rehabilitation. The officer in

charge Kisumu Maximum Prison by his letter dated 19^th November, 2019, filed on 03^rd December, 2019 has vouched for the Petitioner’s good conduct.

5. Ms. Gathu, Senior Prosecution Counsel for the state appreciated that the Petitioner had prepared himself for integration with the public and recommended that he be resentenced to 30 more years.

Analysis and Determination

6. At the time of the petitioner’s conviction, mandatory sentences had not been declared to be unconstitutional.

7. The Supreme Court’s decision in Francis Karioki Muruatetu & Another v Republic & 5 others [2016] eKLR declaring the mandatory death sentence unconstitutional has necessitated resentencing of all persons previously sentenced to the mandatory sentences.

8. I have considered The Sentencing Policy Guidelines, 2016 and its application which is intended to promote transparency, consistency and fairness in sentencing (See Michael Kathewa Laichena & another v Republic [2018] eKLR).

9. In Dismas Wafula Kilwake v Republic [2018] eKLR, the Court of Appeal set out the factors to be considered in sentencing under the Act. It observed as follows:

[W]e hold that the provisions of section 8 of the Sexual Offences Act must be interpreted so as not to take away the discretion of the court

in sentencing. Those provisions are indicative of the seriousness with which the Legislature and the society take the offence of defilement. In appropriate cases therefore, the court, freely exercising its discretion in sentencing, should be able to impose any of the sentences prescribed, if the circumstances of the case so demand. On the other hand, the court cannot be constrained by section 8 to impose the provided sentences if the circumstances do not demand it. The argument that mandatory sentences are justified because sometimes courts impose unreasonable or lenient sentences which do not deter commission of the particular offences is not convincing, granted the express right of appeal or revision available in the event of arbitrary or unreasonable exercise of discretion in sentencing.

10. Even though Appellant was a first offender, the psychological effect of the offences on the 11-year-old complainant cannot be underestimated.