Ochuro v Republic (Criminal Appeal 4 of 2020)  KEHC 9781 (KLR) (13 July 2022) (Judgment)
Neutral citation:  KEHC 9781 (KLR)
Republic of Kenya
Criminal Appeal 4 of 2020
FA Ochieng, J
July 13, 2022
Moses Ogon Ochuro
(Being an appeal from the sentence of the Principal Magistrate’s Court at Winam by Hon. C. N. Njalale (RM) dated the 6th July 2016 in Criminal Case No. 1602 of 2014)
The Appellant was convicted on 2 counts of Defilement contrary to Section 8 (3) of the Sexual Offences Act. He was sentenced to imprisonment for 20 years in respect to each of the 2 offences. However, the trial Court ordered that the sentences should run concurrently.
1.In the original Petition of Appeal, the Appellant challenged both the convictions and the sentences.
2.Subsequently, the Appellant notified the Court that he had chosen to abandon the appeal against conviction.
3.He said that he had gone through a reform cycle, which had changed him from a person who used to delve in criminal activities, into a transformed man who was disciplined.
4.The Appellant expressed the view that he was now ready to utilize his vocational skills, which he had acquired in prison, to adapt into the society. He hoped to be able to make true, his dreams for a better future.
5.The Appellant expressed gratitude to the Criminal Justice System, which had reformed him from an aggressor to a person of good conduct and behavior.
6.I hear the Appellant.
7.A person who readily acknowledges that he had a bad track record, and who is honestly keen to have a second chance in life, ought to be encouraged.
8.And I do sincerely encourage the Appellant to completely turn his back on his criminalized past. May God guide his steps.
9.But I do also emphasize that the Appellant must appreciate the fact that he has to pay a penalty for the crimes he had committed.
10.In my considered opinion, the Appellant was lucky to have had the two sentences run concurrently.
11.I say so because there were two separate victims. Two innocent minors, who were defiled.
12.Each act of defilement constituted a complete offence. Therefore, I would have expected the trial court to hand down sentences that should have run consecutively. But there has been no cross-appeal by the Respondent.
13.Indeed, I might have given consideration to rejection of such a cross-appeal if it had been filed, unless the Respondent satisfied me that the trial court had exercised its discretion wrongfully.
14.I reject the appeal against the sentence.
15.However, in accordance with Section 333 (2) of the Criminal Procedure Code, I direct that the period of One (1) Year and Eight (8) Months be taken into account when the prison authorities are calculating the actual duration which the Appellant should spend in jail. The said period was already “served” whilst the Appellant was undergoing trial. Therefore, he should not have to “serve” that period again.
DATED, SIGNED AND DELIVERED AT KISUMU THIS 13 TH DAY OF JULY 2022FRED A. OCHIENGJUDGE