EXPLAINED: Why Defilement Convict Was Released Before Completing 15-Year Prison Sentence

A defilement convict has been released from prison before completing his 15-year sentence after the High Court in Homa Bay substituted the remainder of his jail term with a one-year probation order.

The decision has sparked debate, with many questioning why a person convicted of such a serious offence would be allowed to leave prison early.

However, the court did not overturn the conviction or grant the man a pardon.

Instead, it reviewed how his sentence was being served and found legal grounds to substitute the remaining prison term with probation.

Defilement Convict Sentence Reviewed

The applicant asked the High Court to apply Section 333(2) of the Criminal Procedure Code, which requires courts to take into account the time an accused person spends in custody before sentencing.

Court records showed that the man was arrested on December 30, 2017, and remained in custody until he was convicted and sentenced on September 4, 2018.

Justice Patrick J.O. Otieno found that the trial court did not consider this period when calculating the prison sentence.

“The omission by the trial court to take into account the period the Applicant remained in custody prior to sentencing amounted to non-compliance with Section 333(2) of the Criminal Procedure Code,” the judge ruled.

The court directed that the sentence be computed from December 30, 2017, the date of his arrest.

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Court Considered Age and Prison Conduct

Apart from correcting the sentence calculation, the court also considered whether the remaining prison term could be served outside prison.

A report from Rachuonyo Prison described the applicant as a prisoner of exemplary character.

It stated that he had behaved well throughout his incarceration and had been entrusted with leadership responsibilities among inmates.

The prison report also noted that the applicant was 79 years old.

The Probation and Aftercare Service also recommended his release on a non-custodial sentence.

Although the victim’s father remained unhappy with the proposal, the report stated that the victim, now 23 years old and married, and the local community were receptive to the applicant’s reintegration.

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Why the High Court Allowed Probation

Justice Otieno acknowledged that defilement is a serious offence that attracts severe punishment because of its impact on victims and society.

However, he said the court also had to consider the applicant’s advanced age, favourable prison and probation reports, and the Judiciary’s prison decongestion programme for inmates with less than three years remaining on their sentences.

“The age of the applicant and his social standing persuade the court that he is a vulnerable member of society who deserves not only a chance to enjoy his sunset days in freedom but also leniency and sympathy,” the judge said.

He added, “This is done not merely because of the request by the applicant, but also on the Judiciary’s deliberate efforts to decongest prisons of inmates with less than three years of unserved prison terms.”

Conviction Remains in Place

The High Court did not quash the conviction for defilement.

Instead, it ordered that the remaining custodial sentence be substituted with a one-year probation term.

During that period, the applicant will be supervised by the County Director of Probation in Homa Bay, who will develop a reintegration programme to help him return to society.

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Photo collage of Homabay High Court ruling on the review of a defilement convict sentence
PHOTO/Kenya Law