Tobias Okumu Odongo v Rebuplic

The Respondent’s Submissions 4. The respondent concedes that the trial court did not factor in the time spent in custody when passing the sentence of 10 years imprisonment. 5. The respondent submits that the prosecution proved its case beyond reasonable doubt and the appellant was lawfully convicted and sentenced. The appellant was charged with a felony which attracts a sentence of not less than ten years imprisonment in accordance with the Sexual Offences Act. There was no other sentence available for the appellant upon conviction except what is provided under Section 9 (2) of the Sexual Offences Act. Section 35 of the Penal Code was non-applicable to the appellant’s case. 6. The main issue for determination is whether the sentence imposed on the appellant is justified. The Law 7. This being an appeal against the sentence it is important to determine the circumstances under which an appellate court would interfere with the sentence by the trial court. The principles guiding interference with sentencing by the appellate court were properly in my view, set out in S. vs Malgas 2001 (1) SACR 469 (SCA) at para12 where it was held that:“ A court exercising appellate jurisdiction cannot, in the absence of material misdirection by the trial court approach the question of sentence as if it were the trial court and then substitute the sentence arrived at by it simply because it prefers it. To do so would be to usurp the sentencing discretion of the trial court….However, even in the absence of material misdirection, an appellate court may yet be justified in interfering with the sentence imposed by the trial court. It may do so when the disparity between the sentence of the trial court and the sentence which the appellate court would have imposed had it been the trial court is so marked that it can properly be described as “shocking” “startling” or “disturbingly inappropriate” similarly in Mokela vs The State (135/11) [2011] ZASCA 166, the Supreme Court of South Africa held that:“ It is well established that sentencing remains pre-eminently within the discretion of the sentencing court. This salutary principle implies that the appeal court does not enjoy carte blanche to interfere with sentences which have been properly imposed by a sentencing court. In my view, this includes the terms and conditions imposed by a sentencing court on how or when the sentence is to be served. 8. The predecessor of the Court of Appeal in the case of Ogolla s/o Owuor vs Republic [1954] EACA 270 pronounced itself on this issue as follows:“ The court does not alter a sentence unless the trial judge has acted upon wrong principles or overlooked some material factors.” 9. The Court of Appeal, on its part in Bernard Kimani Gacheru vs Republic [2002] eKLR restated that:“ It is now settled law, following several authorities by this court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal, the appellate court will not easily interfere with sentence, unless that sentence is manifestly excessive in the circumstances of the case or that the trial court overlooked some material factor, or took into account some wrong material, https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3584/eng@2026-03-12 2

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or acted on a wrong principle. Even if, the appellate court feels that the sentence is heavy and that the appellate court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already stated is shown to exist.” 10. In regard to the period spent in custody Section 333(2) of the Criminal Procedure Code provides:“ Subject to the provisions of Section 38 of the Penal Code, every sentence shall be deemed to commence from and to include the whole of the day of, the date on which it was pronounced, except where otherwise provided in this Code. Provided that where the person sentenced under sub section (1) has prior, to such sentence shall take account of the period spent in custody.” 11. It is clear from the cited proviso of Section 333(2) of the Criminal Procedure Code that the law requires courts during sentencing to take into account the period the convict spent in custody. 12. The provisions of section 333(2) of the Criminal Procedure Code was the subject of the decision in Ahamad Abolfathi Mohammed & Another vs Republic [2018]eKLR where the Court of Appeal held that:“ The second is the failure by the court to take into account in a meaningful way, the period that the appellants had spent in custody as required by section 333(2) of the Criminal Procedure Code. By dint of section 333(2) of the Criminal Procedure Code, the court was obliged to take into account the period that they had spent in custody before they were sentenced. Although the learned judge stated that he had taken into account the period the appellants had been in custody, he ordered that their sentence shall take effect from the date of their conviction by the trial court. With respect, there is no evidence that the court took into account the period already spent by the appellants in custody. “Taking into account” the period spent in custody must mean considering that period so that the imposed sentence is reduced proportionately by the period already spent in custody. It is not enough for the court to merely state that it has taken into account the period already spent in custody and still order the sentence to run from the date of the conviction because that amounts to ignoring altogether the period already spent in custody. It must be remembered that the proviso to section 333(2) of the Criminal Procedure Code was introduced in 2007 to give the court power to include the period already spent in custody in the sentence that it metes out to the accused person. We find that the first appellate court misdirected itself in that respect and should have directed the appellants’ sentence of imprisonment to run from the date of their arrest on 19th June 2012.” 13. The same court in Bethwel Wilson Kibor vs Republic [2009]eKLR expressed itself as follows:“ By proviso to section 333(2) of the Criminal Procedure Code where a person sentenced has been held in custody prior to such sentence, the sentence shall take into account of the period spent in custody. Ombija J, who sentenced the appellant did not specifically state that he had taken into account the 9 years period that the appellant had been in custody. The appellant told us that as at 22nd September 2009 he had been in custody for 10 years and one month. We think that all these incidents ought to have been taken into account in assessing sentence. In view of the foregoing, we are satisfied that the appellant has been sufficiently punished. We therefore allow this appeal and reduce the sentence to the period that the https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3584/eng@2026-03-12 3

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appellant has already served. He is accordingly to be set free forthwith unless otherwise lawfully held.” 14. The Judiciary Sentencing Policy Guidelines provide as follows: “ The proviso to section 333(2) of the Criminal Procedure Code obligates the court to take into account the time already served in custody if the convicted person had been in custody during the trial. Failure to do so impacts on the overall period of detention which may result in an excessive punishment that is not proportional to the offence committed. In determining the period of imprisonment that should be served by an offender, the court must take into account the period in which the offender was held in custody during the trial.” 15. The appellant was arrested on 8th November 2020 and upon taking plea, the trial court granted him bond of Kshs. 200,000/- with one surety of similar amount. However, there is no evidence on record that the appellant raised a surety in order to be released on bond. The trial court delivered its judgment and sentenced the applicant on 19th August 2021. The applicant spent nine (9) months in remand awaiting trial. By virtue of Section 333(2) of the Criminal Procedure Code, this duration ought to have been considered during sentencing. 16. I have perused the court record and noted that during sentencing, the trial court took into account the mitigation by the applicant and the nature of the offence. The trial court further considered the relevant provisions of law and then sentenced the applicant to ten (10) years imprisonment in line with Section 9(2) of the Sexual Offences Act. It is evident that the trial court did not take into consideration the time spent by the applicant in custody. This court is empowered to take the said period into consideration. 17. The appellant further argues that he has spent five years in custody and thus urges the court to discharge him under Section 35 of the Penal Code. 18. Section 9(2) of the Sexual Offences Act states as follows:“ A person who commits an offence of attempted defilement with a child is liable upon conviction to imprisonment for a term of not less than ten years. 19. In the present case, the appellant is a first offender and had stated that he had suffered in prison since he was arrested. The appellant in his submissions on appeal stated that he is remorseful and that he learnt from his mistake. On perusal of the circumstances in which the offence occurred, the appellant attempted to defile the minor aged thirteen (13) years which caused trauma to the young victim. He had even threatened to strangle the victim to death. The trauma that goes with the offence of attempted defilement is detrimental to the child’s mental and physical health and may even affect the future of the child on performance in life generally and finally define the character of the said child. It is therefore my considered view that the sentence meted out was justified. 20. It is further noted that there exists recent Supreme Court decisions where the court held that the sentence for the offence of defilement is the one provided for in the Sexual Offences Act. In the Petition R vs Julius Manyeso (Petition E013 of 2024) [2025] KESC 16 (KLR) (11 April 2025) (Judgment) the Supreme Court set aside the sentence of 40 years imprisonment reviewed by the Court of Appeal and substituted it with life imprisonment on grounds that Section 8 of the Act forms the basis of sentencing convicts in cases of defilement. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3584/eng@2026-03-12 4

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21. This court is bound by decisions of the Supreme Court under Article 163(7) of the Constitution. As such I find that the sentence imposed by the trial court was in accordance with the law, that is Section 9 of the Act. In my considered view, the said sentence ought to be upheld. It is also commensurate to the offence and the circumstances thereto. I hereby uphold the sentence imposed by the trial court of ten (10) years imprisonment. 22. The appellant shall serve the ten (10) years imprisonment sentence to commence from the date of arrest, that is the 8th of November 2020. 23. This appeal is partly successful in regard to the provisions of Section 333(2) of the Criminal Procedure Code. 24. It is hereby so ordered. JUDGMENT DELIVERED VIRTUALLY, DATED AND SIGNED AT THIKA THIS 12TH DAY OF MARCH 2026. F. MUCHEMI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3584/eng@2026-03-12 5

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