Erick Omondi Abuogo v Republic

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KISUMU MISC. CR. APPLICATION NO. 35 OF 2020 ERICK OMONDI ABUOGO................................APPLICANT VERSUS REPUBLIC.......................................................RESPONDENT RULING The Petitioner, ERICK OMONDI ABUOGO told this Court that he was seeking the review of the sentence which the learned trial magistrate had imposed upon him. 1. He was convicted for the offence of Defilement, and was then sentenced to 15 Years Imprisonment. 2. When handing down the sentence, the trial court expressed itself thus; “At the time the offence took place the complainant was 16 years of age, therefore a minor as per the provisions of the Sexual Offences Act No. 3 of 2006. I will therefore sentence the Accused Person to 15 years imprisonment.” 3. In effect, the trial court derived guidance from the provisions of Section 8 (4) of the Sexual Offences Act, which stipulates that; “A person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years.” 4. In my considered opinion, the trial court felt compelled to comply with the express letter of Section 8 (4) of the Sexual Offences Act. The court did not address the specific circumstances of the Petitioner. 5. Following the pronouncement by the Supreme Court, in the case of FRANCIS KARIOKO MURUATETU & ANOTHER Vs REPUBLIC, PETITION NO. 15 OF 2015, it is now deemed unconstitutional when a statutory provision imposes a mandatory sentence. 6. Accordingly, as the trial court failed to demonstrably take into account the factors which could result in an appropriate sentence, the Petitioner is entitled to being re-sentenced. 7. When the High Court dismissed the Petitioner’s appeal, it expressed itself in the manner following; “Whilst the court may have discretion in sentencing, such discretion can only be exercised within the confines of the law as laid down by the legislature. In this case, I note that the Appellant betrayed the trust which the Complainant had in him. He took advantage of a young girl who believed that he would assist her. To my mind, that is one of the relevant factors to be taken into account when handing down an appropriate sentence: and rather than being a factor in the reduction of the sentence, it could actually be the basis for a more severe sentence.” 8. That factor is still a relevant consideration during re-sentencing. 9. Another relevant factor is that the Petitioner was a young man of 20, and also that he was a first offender. 10. Although he reasons that long incarceration had shattered his dreams, I hold the view that it is his actions, of defiling the young girl,

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