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|Case Number:||Criminal Appeal 28 of 2006|
|Parties:||Francis Odingi v Republic|
|Date Delivered:||24 Feb 2011|
|Court:||Court of Appeal at Nakuru|
|Judge(s):||Johnson Evan Gicheru, Emmanuel Okello O'Kubasu, Daniel Kennedy Sultani Aganyanya|
|Citation:||Francis Odingi v Republic  eKLR|
|Case History:||(An appeal from the conviction & sentence of the High Court of Kenya at Kericho (Apondi, J) dated 28th June, 2005 in HCCRA NO. 10 OF 2003)|
|History Docket No:||HCCRA NO. 10 OF 2003|
|History Judges:||Muga Apondi|
Criminal Practice and Procedure – sentence – appeal against sentence – grounds that it was harsh and excessive – appellant having been convicted and sentenced to 6 years imprisonment in the trial court – sentence enhanced to 14 years by the superior court on appeal – where the attorney General had not sought the enhancement – maximum sentence being 21 years – mitigating circumstances – manner in which the court will handle appeals on sentence – whether the superior court had been right in enhancing the sentence – Penal Code section 162 (a); Criminal Procedure Code section 354 (3)& (6)
|Disclaimer:||The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information|
Francis Odingi, the appellant was charged in the Principal Magistrate’s court at Kericho with the offence of committing an unnatural offence, contrary to Section 162 (a) of the Penal Code. The particulars of the charge were that on the 18th day of October, 2002, in Kericho District of the Rift Valley Province, he had carnal knowledge of M.O against the order of nature.
When the appellant was taken to court on 24th October, 2002, he admitted the offence by pleading guilty to the charge. Then Inspector of Police Okila, who was conducting the prosecution case, narrated the facts which gave rise to the charge. The appellant replied:
“Maelezo ni ya ukweli. - The particulars are correct.”
The learned Senior Resident Magistrate (Ombaye) then convicted the appellant on his own plea of guilty. The appellant then mitigated as follows:
The learned Senior Resident Magistrate considered the mitigating circumstances and sentenced the appellant to 6 (six) years imprisonment. His appeal to the superior court was dismissed save that the learned Judge (Muga Apondi J) enhanced the sentence from 6 (six) to 14 (fourteen) years imprisonment. He appealed to this Court in a Memorandum of Appeal filed herein and which had 9 grounds all referred to as grounds of mitigation. However, when he appeared before us on 22nd February, 2011, the appellant said he was satisfied with the conviction but pleaded for the reduction of the sentence. Mr Omwega, learned Principal State Counsel opposed the appeal stating that although the sentence provided for the offence was 21 years, the appellant was only handed 14 years. We note this is the maximum sentence provided under Section 162 (a) of the Penal Code.
Section 354 (3) (iii) of the Criminal Procedure Code, Chapter 75, Laws of Kenya provides:
However, Section 354 (6) specifically provides that:
“6. Nothing in sub section (ii) shall empower the High Court to impose a greater sentence than might have been imposed by the court which tried the case.”
In the circumstances, we allow this appeal to the extent that the appellant will serve the 6 (six) years sentence imposed by the learned Senior Resident Magistrate on 24th October, 2002. This will be the order of the Court.
JUDGE OF APPEAL
JUDGE OF APPEAL
I certify that this is a true copy of the original.