Gordon Ochieng Orinda v Republic

6. 7. He relied on mitigating grounds and stated that he relied on mitigation. The appeal was opposed. To be able to proceed, the court needs to set out the sections of the law wherein the appellant was charged. Section 8(1) and 2 of the Sexual Offences Act provide as follows: (1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement. (2) A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life. On the other hand, section 257 of the Penal Code provides as follows: Any person who kidnaps any person from Kenya or from lawful guardianship is guilty of a felony and is liable to imprisonment for seven years. 8. 9. The court then has to deal with the issue of sentence. The nature of sentences under the Sexual Offenses Act is circumscribed. This particular offence under section 8(1) and (2) of the Sexual Offences Act provides for a mandatory sentence of life years imprisonment. The question of such sentences was addressed in the case of Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) [supra] where the Supreme Court, [MK Koome, CJ, MK Ibrahim, SC Wanjala, N Ndungu & I Lenaola, SCJJ] posited as follows: 11. Mandatory sentences and minimum sentences as punishment in law have been commonly prescribed by legislatures worldwide but recently, various apex courts of several countries such as Canada, the USA, Australia, and South Africa as well as the European Court of Human Rights have struck down both mandatory life imprisonment as well as minimum sentences in an effort to move towards the approach of proportionality in punishment based on the actual crime committed. 12. Before Kenyan courts could determine whether or not the prevailing trends and decisions were persuasive, there ought to be a proper case filed, presented and fully argued before the High Court and escalated through the appropriate channels on the constitutional validity or otherwise of minimum sentences or mandatory sentences other than for the offence of murder. That was the Supreme Court’s approach and direction in Muruatetu , which had to remain binding to all courts below. 13. The Court of Appeal failed to identify with precision the provisions of the Sexual Offences Act it was declaring unconstitutional, left its declaration of unconstitutionality ambiguous, vague and bereft of specificity. That approach was problematic in the realm of criminal law because such a declaration would have grave effect on other convicted and sentenced persons who were charged with the same offence. Inconsistency in sentences for the same offences would also create mistrust and unfairness in the criminal justice system. Yet the fundamental issue of the constitutionality of the minimum sentence may not have been properly filed and fully argued before the superior courts below. Further, the same position was reiterated by the supreme court in its decision in Republic v Manyeso [2025] KESC 16 (KLR), where it stated as follows: Paragraph 11 to 14 of the Muruatetu directions are very clear that the decision in the Muruatetu case did not invalidate mandatory sentences or minimum sentences in the Penal Code, Sexual Offences Act or any other statute. Further, that the Muruatetu case cannot be said to be the authority for stating that all provisions of the law prescribing minimum sentences are inconsistent with the Constitution. Paragraphs 93 to 97 of the Muruatetu decision are also explicit that it is not for the court to define what https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5571/eng@2026-04-28 2

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constitutes a life sentence. While we appreciated that a life sentence could mean a certain minimum or maximum time to be set by a judicial officer, this court made the following recommendations to the Attorney General to develop legislation on what constitutes a life sentence: 94. We recognize that although the Judiciary released elaborate and comprehensive Sentencing Policy Guidelines in 2016, there are no specific provisions for the sentence of life imprisonment, because it is an indeterminate sentence. Nevertheless, we are in agreement with the High Court decision in Jackson Wangui, supra, which found that it is not for the court to define what constitutes a life sentence or what number of years must first be served by a prisoner on life sentence before they are considered on parole. This is a function within the realm of the Legislature. 95. We also acknowledge that in Kenya and internationally, sentencing should not only be used for the purpose of retribution, it is also for the rehabilitation of the prisoner as well as for the protection of civilians who may be harmed by some prisoners. We find the comparative jurisprudence with regard to the indeterminate life sentence is compelling. We find that a life sentence should not necessarily mean the natural life of the prisoner; it could also mean a certain minimum or maximum time to be set by the relevant judicial officer along established parameters of criminal responsibility, retribution, rehabilitation and recidivism. 96. We therefore recommend that the Attorney General and Parliament commence an enquiry and develop legislation on the definition of ‘what constitutes a life sentence’; this may include a minimum number of years to be served before a prisoner is considered for parole or remission, or provision for prisoners under specific circumstances to serve whole life sentences. This will be in tandem with the objectives of sentencing. 65. From the above paragraphs of the Muruatetu case any reading of that decision ought to lead to the conclusion that it is upon the Legislature to enact legislation on what constitutes a life sentence and not the courts. 10. The court was clearly wrong in issuing a life sentence and then convicting for 30 years. The sentence is therefore illegal, null and void. Consequently, the sentence of 30 years is set aside. In lieu thereof I substitute with a mandatory life sentence. 11. The second count provided for 7 years. The court sentenced the appellant to 15 years. This was unlawful. The 15 year sentence is set aside. In lieu thereof, it is noted that the children were held for over 24 hours. The children were of tender years. The last minor was 6 years old. A sentence of 6 years will suffice. 12. The appellant raised the issue on section 333(2) of the Criminal Procedure Code. The court was plainly wrong in not indicating the time the sentence was to begin. The law under Section 333(2) of the Criminal Procedure Code provides as follows: “ 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.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5571/eng@2026-04-28 3

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13. It is clear from the above proviso that the law requires courts to take into account the period the convict spent in custody. The Court of Appeal in Ahamad Abolfathi Mohammed & Another vs Republic [2018] eKLR stated as follows as regards time spent in custody: “ 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.” 14. This is buttressed in the Judiciary Sentencing Policy Guidelines, 2023, 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 Applicant remained in custody throughout. Therefore, Section 333(2) of the Criminal Procedure Code requires, nay obligates, the court to take into account the period spent in custody pending trial during sentencing. It is clear that the time spent in custody was not taken into account. The period spent in custody must be considered when calculating the imposed sentence. Therefore, the life sentence shall commence on 06.03.2024, the date of arrest. Order 16. In the circumstances, I make the following orders: a. The sentence of 30 years for count 1 is set aside. In lieu thereof I substitute with a mandatory life sentence. b. The sentence of 15 years for count 2 is set aside. In lieu thereof I substitute with 6 years imprisonment. c. The sentence shall commence on 06.03.2024, the date of arrest. d. Sentences shall run concurrently as ordered by the court. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5571/eng@2026-04-28 4

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e. Right of appeal 14 days. f. The file is closed. DELIVERED, DATED AND SIGNED AT NYERI ON THIS 28TH DAY OF APRIL, 2026 Judgment delivered through Microsoft Teams Online Platform. KIZITO MAGARE JUDGE In the presence of: Appellant present Mr. Kihara for the State Cpl. Nelson Omondi present Court Assistant – Osoo/Martin/Michael M. D. KIZITO, J. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5571/eng@2026-04-28 5

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