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JudgmentBENSON OTIENO NAMUDE VS The Republic2 min read

BENSON OTIENO NAMUDE VS The Republic

High Court at Mombasa High Court · · Wendy Micheni


(ORIGINATING FROM SEXUAL OFFENCE CASE NUMBER 29 OF 2016 IN THE SENIOR PRINCIPAL MAGISTRATE’S COURT AT SHANZU (HON. F. W. MACHARIA [S.P.M]) AND MISC. APPLICATION NO. E072 OF 2022 IN THE HIGH COURT OF MOMBASA (HON. LADY JUSTICE A. ONG’INJO.


  1. The Applicant was charged and convicted after a full trial for the offence of Incest contrary to Section 20(1) of the Sexual Offences Act No. 3 of 2006 and sentenced to 10 years imprisonment on 26th July, 2019. On 16th August, 2023 through High Court Miscellaneous Application Number E072 of 2022, my sister Hon. Lady Justice A. Ong’injo issued an order discounting 10 months from his jail terms of 10 years since he was in custody for 10 months awaiting for custody.
  2. In his grounds of mitigation, the Applicant humbly begged the Honourable Court for probation placement as per the provisions of Section 4(2) of the Probation Offenders Act No. 64 of 2012 and the Sentencing Policy Guidelines of 2016. He further contended that he was remorseful and that he was under hypertension medication on a daily basis plus suffered from ulcers and heart problems. According to him he was of good character and that he was a first time offender with two wives and children who solely depended on him
  3. A sentence review report dated 28th November, 2024 by Stephen Muthoka indicated that the Applicant’s wife was ready to accept him back as she constantly had been making visits to her while serving his sentence. Relatives especially the siblings were most moved by the possibility that he would be released earlier than anticipated and committed to indulge fully in any rehabilitation program.
  4. The officer stated that a non – custodial sentence, in his considered opinion would serve a best way to save his family and establish his economic source of income and for him to be an advocate to fight against gender-based violence (GBV) or any sort of Sexual related offence.
  5. According to the officer, the victim was his daughter and she was unreachable for the interview. as she relocated to go eke a living else where. There were no known risks or threats established or reported by the family members to the community, victim or vice versa. The Applicant was remorseful and regretted his actions and prayed for mercy from this Honourable Court and forgiveness from the victim.
  6. The Applicant was agreeable to perform unpaid community work for the remainder of his prison one-year sentence and prayed for leniency and consideration for community service. The officer recommended that the Applicant was suitable for a non – custodial sentence. The Honourable Court may review his sentence to serve a community service at Kongowea Assistant County Commissioners office for the remainder of six (6) months or otherwise the court may consider.
  7. I have considered the Sentence Review Report  and his ill health, the decongestion policy and I find that the Applicant has served sufficient punishment. I set aside the sentence by the trial court and substitute the same with the time spen in custody plus  a non-custodial sentence  of community work for  1 year and six months at Kongowea Assistant County Commissioners office.

IT IS SO ORDERED ACORDINGLY.

RULING DELIVERED THROUGH MICROSOFT TEAM VIRTUAL, SIGNED AND DATED AT MOMBASA THIS …….…………DAY OF ………………………..…….., 2025.

……………………………………………………..

HON. LADY JUSTICE W. M. KAGENDO

(JUDGE)

HIGH COURT OF KENYA AT MOMBASA

(CRIMINAL DIVISION)

In the presence of:

M/s. Maureen     Court Assistant;

Mr Ngiri             State Counsel;

Applicant

    BENSON OTIENO NAMUDE VS The Republic BENSON OTIENO NAMUDE VS The Republic