• The judges said they thought the term the man had already served was sufficient punishment for his youthful indiscretion.
• "The appellant shall be released forthwith unless held for some other lawful reason,” the judges said.
A man who got convicted for defiling a 16-year-old girl when he was 19, and on an attempted appeal, got an enhanced sentence for an alternative charge of an indecent act, will now be free.
Stephen Ouma Ogola had sexual contact with the minor in Homa Bay in 2014 and got arraigned on defilement charges.
An alternative charge of indecent act with a minor was pressed against him. The magistrate convicted him on the alternative charge as a medical examination of the girl proved penetration happened.
He was handed 10 years. He would then approach the High Court in the area to contest the conviction.
His sobbing turned into wailing. At the High Court, Judge David Majanja — as rightly required on the first appeal —evaluated the evidence afresh and convicted Ogola on the alternative charge, substituting it for the original one.
This time, the court served him 15 years.
The 2015 judgment was a pyrrhic victory for him as the court quashed his conviction for defilement but convicted him for an indecent act.
In September 2020, Ogola tried his second luck at the Court of appeal. This time, he went after the sentence, and not the conviction.
The submissions made in support of the appeal reads like a statement in mitigation.
“…..the appellant says he was a young man of 18 years at the time he committed the offense and is remorseful. He states that his stay in incarceration has been a time of reflection, reformation, and rehabilitation. He gives instances of reform; an award of Diploma certificates from Emmanuel Bible School, and Lamp and Light Bible Correspondence. He has acquired skills in carpentry and joinery,” the appeals court judgment read.
The prosecution did not object to the appeal against the sentence, telling the court that, “the imposition of an enhanced sentence after the substituted conviction [was] without a basis because there was no cross-appeal nor was the appellant given notice (written or oral) of the possibility of a more severe sentence.”
On their part, the three-judge bench said they had “enough reason to reduce the sentence imposed even without discussing the legality of the sentence imposed by the first appellate court.”
The judges rendered their decision on November 23.
At the time of the decision, Ogola had been behind bars for an accumulative period of eight and a half years.
The judges said they thought the term the man had already served was sufficient punishment for his youthful indiscretion.
“He has served 8 ½ years. We count this period from May 15, 2014, as the appellant was in custody even during the trial. We have considered that he is remorseful and has reformed.”
“While it can never be an excuse for him to have defiled a minor, and we cannot possibly trivialize the seriousness of the offense, we think that the three-year age difference between the victim and the appellant at the time of the offense is somewhat a comfort to us the sentence we have imposed is proportionate punishment for his transgression,” they added.
The judges said they will reduce the sentence of 15 years imprisonment to the term already served.
"The appellant shall be released forthwith unless held for some other lawful reason,” the judges said.