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|Case Number:||Criminal Appeal 6 of 2010|
|Parties:||MOSES OMONDI ODUOR V REPUBLIC|
|Date Delivered:||23 Jun 2011|
|Court:||High Court at Kisumu|
|Judge(s):||Samuel Elikana Ondari Bosire, Alnashir Ramazanali Magan Visram, Erastus Mwaniki Githinji|
|Citation:||MOSES OMONDI ODUOR V REPUBLIC  eKLR|
|Case History:||(Appeal from a judgment of the High Court of Kenya at Kisumu (Karanja, J) dated 30th November, 2009 In H.C. Cr. A. No. 67 of 2009)|
|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|
Following his trial for the offence of defilement contrary to section 8(3) of the Sexual Offences Act, Act No. 3 of 2006, Moses Omondi, the appellant was convicted and thereafter sentenced to 30 years imprisonment by the Senior Resident Magistrate’s Court at Ukwala. The complainant, J.A.O alias M.A, was on the material date of the offence under the age of 15 years. The particulars of the offence alleged that on 8th February, 2009, in Siaya District, within Nyanza Province, had carnal knowledge of J.A.O, a girl of the age of fifteen years.
The appellant’s first appeal against conviction was dismissed by the High Court, but on sentence that court thought that the sentence of 30 years was on the higher side, and consequently it reduced the sentence to 20 years imprisonment.
Section 8 (3) of the Sexual Offences Act, Act No. 3 of 2006, provides as follows:-
“A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.”
The appellant in his memorandum of appeal has raised several grounds for seeking the reduction of his sentence, namely, that he is an orphan, has several siblings whom he is supposed to look after, but because of his incarceration some have dropped out of school for lack of school fees, he has learnt a lot in prison which has reformed his character, including becoming saved, he has acquired some skills, among them tailoring and dress making and if released, he hopes to apply them to earn a living and that he hopes to preach the gospel of Jesus Christ, over and above working hard to earn a living to help both himself and his siblings. Whilst we commend the appellant for reforming and working hard to acquire useful skills and to be converted into Christianity, the offence for which he stands convicted carries a minimum sentence. He was awarded the minimum sentence by the High Court. That being so, our hands are tied.
Besides, this being a second appeal, by reason of the provisions of section 361 (1) (a) of the Criminal Procedure Code, severity of sentence being a question of fact, an appeal against sentence does not lie.