Owino v Republic (Criminal Appeal 138 of 2018) [2024] KECA 43 (KLR) (25 January 2024) (Judgment)
- Court
- Court of Appeal
- Case number
- 43
- Citation
- [2024] KECA 43 (KLR)
- Decided
- 25 January 2024
The mandatory life sentence imposed on the appellant is unconstitutional and is set aside. The appellant is sentenced to 30 years imprisonment.
Facts
The appellant, Kennedy Okinyi Owino, was convicted and sentenced to life imprisonment for delementing a 7-year-old girl. The prosecution presented evidence of the appellant's forced sexual assault of the minor, while the appellant's defense claimed he was working as a herdsman and was not paid for two months.
Issues
- ingredients of the offence of delement were not established
- his defence was not considered
- mandatory sentence of life imprisonment is contrary to Article 50(2) of the Constitution
Reasoning
The court found the mandatory life sentence unconstitutional as it denied the trial court the opportunity to consider the peculiar circumstances of the case and to arrive at an appropriate sentence. The court also found the indeterminate life sentence inhuman and violating the right to dignity under Article 28 of the Constitution.
Outcome
Appeal allowed against sentence, conviction dismissed
Orders
- Indeterminate sentence of life imprisonment set aside
- Sentence of 30 years imprisonment substituted
Authorities cited
Legislation (1)
- Sexual Offences Act
Cases cited (3)
- Philip Mweke Maingi and 5 Others v Director of Public Prosecutions and the Attorney General
- S v Malgas
- Evans Nyamari Ayako v Republic
Loading judgment…