[2021] KEHC 9424 (KLR)
The court held that, despite the applicant's reliance on the Muruatetu decision and his mitigation, the circumstances of the offence—defilement and incest of a 10-year-old niece—were extremely grave. The trauma inflicted on the victim, her tender age, and the familial relationship were aggravating factors. The court...
Source-derived case information.
- Citation
- [2021] KEHC 9424 (KLR)
- Parties
- Applicant: Alois Maragia Onyonka; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Narok
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 32 of 2019
- Procedural Posture
- Miscellaneous Application / Ruling on Resentencing Application
- Outcome
- application dismissed; life sentence upheld
- Judges
- F Gikonyo
- Legal Topics
- Resentencing, Mandatory Sentences, Defilement, Incest, Mitigation, Muruatetu Principle
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Alois Maragia Onyonka
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Resentencing Application
Legal Issues
- 1 Whether the applicant is entitled to resentencing based on the Supreme Court decision in Muruatetu.
- 2 Whether the mandatory life sentence imposed for defilement/incest of a child under 11 years is excessive or harsh in the circumstances.
- 3 What factors should be considered in resentencing, including time served and mitigation.
Ratio Decidendi
The court held that, despite the applicant's reliance on the Muruatetu decision and his mitigation, the circumstances of the offence—defilement and incest of a 10-year-old niece—were extremely grave. The trauma inflicted on the victim, her tender age, and the familial relationship were aggravating factors. The court found that the seriousness of the offence and its consequences outweighed the applicant's mitigation, and that the life sentence imposed was appropriate and proportionate. The application for resentencing was therefore rejected, and the original sentence upheld.
Court Disposition
application dismissed; life sentence upheld
Orders
- The application for resentencing is rejected.
- The life sentence imposed on the applicant is affirmed.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAROK
MISC. CR. APPLICATION NO 32 OF 2019
ALOIS MARAGIA ONYONKA........................APPLICANT
-versus-
REPUBLIC......................................................RESPONDENT
RULING
Re-sentencing on basis of Muruatetu
[1] The Notice of Motion filed herein on 27th August, 2019 seeks resentencing. In the affidavit in support, the applicant bases his request for resentencing on Muruatetu decision. According to him, in accordance with that decision, the mandatory life sentence is excessive and too harsh. He seeks its review.
[2] I do note however, that in his oral submissions to the court he also asked the court to take into account the time he had spent in jail. He also stated that this court should help him as he has no other court that will help him.
[3] The prosecution opposed the application and more specifically stated that courts have held that the case of Dismas Wafula Kilwake vs. Republic [2018] KLR does not apply respectively.
ANALYSIS AND DETERMINATION
[4] The prosecution argued that the case of Dismas Wafula does not apply respectively. There is no express direction in the case as was the case in Muruatetu case. Nonetheless, I do note that sentence was one of the issues contested in the Court of Appeal. The Court of Appeal found that the applicant had defiled his niece aged 10 years. They also found that this was an act of incest upon a girl of below 11 years. In sentencing, the gravity of the offence and the consequences of the offence on the victim are relevant factors. The sentence provided for defilement of or incest with a child below the age of 11 years is indicative of the seriousness of the offence. In this case, the child was aged 10 years- of quite tender age. In addition, the victim child was his niece. Let us not also forget that such trauma on a child leaves life-long indelible corrosive mark in her life. These are very serious matters which should be taken into consideration in sentencing. I do also note the mitigation by the applicant to wit; that his children are suffering; that he has spent considerable time in prison. When I take all these factors in consideration, I find life sentence to be appropriate sentence for the applicant. His application does not yield much and is rejected. It is so ordered. Right of appeal explained.
Dated, signed and delivered at NAROK through Microsoft Teams Online Application this 3RD day of February 2021
...................................
F. GIKONYO
JUDGE
In the presence of:
1. Ms. Torosi for the Respondent
2. The appellant in person
3. Mr. Kasaso – Court Assistant
....................................
F. GIKONYO
JUDGE