[2023] KEHC 2983 (KLR)
The court dismissed the petition for resentencing on the basis that the petitioner failed to provide any supporting documents, such as proceedings from the lower court or the appeal. Without these records, the court found it had no basis upon which to review or vary the sentence imposed for the serious offence of...
Source-derived case information.
- Citation
- [2023] KEHC 2983 (KLR)
- Parties
- Applicant: Joshua Omanga Apiyo; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Criminal Petition E021 of 2022
- Procedural Posture
- Criminal Petition / Ruling on Petition for Resentencing
- Outcome
- petition dismissed
- Judges
- RE Aburili
- Legal Topics
- Resentencing, Sexual Offences, Defilement, Section 333 2 Criminal Procedure Code
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joshua Omanga Apiyo
Applicant
Republic
Respondent
Procedural Posture
Criminal Petition / Ruling on Petition for Resentencing
Legal Issues
- 1 Whether the petitioner is entitled to resentencing in the absence of supporting documents.
- 2 Whether the court can review the sentence imposed for defilement without lower court or appellate records.
Ratio Decidendi
The court dismissed the petition for resentencing on the basis that the petitioner failed to provide any supporting documents, such as proceedings from the lower court or the appeal. Without these records, the court found it had no basis upon which to review or vary the sentence imposed for the serious offence of defilement. The court emphasized that proper documentation is essential for the consideration of any resentencing application, particularly for grave offences under the Sexual Offences Act. The petition was found to be devoid of merit and was dismissed, with liberty to the petitioner to file a fresh petition supported by the necessary documents.
Court Disposition
petition dismissed
Orders
- The petition for resentencing is dismissed.
- The petitioner may file a fresh petition with supporting documents for consideration on merit.
Full Case Text
Judgment text and source record
24 paragraphs
Apiyo v Republic (Criminal Petition E021 of 2022) [2023] KEHC 2983 (KLR) (24 March 2023) (Ruling)
Neutral citation: [2023] KEHC 2983 (KLR)
Republic of Kenya
In the High Court at Kisumu
Criminal Petition E021 of 2022
RE Aburili, J
March 24, 2023
Between
Joshua Omanga Apiyo
Petitioner
and
Republic
Respondent
Ruling
1. The Petitioner herein Joshua Omanga Apiyo by his petition for resentencing filed on October 5, 2022 claims that he was convicted and sentenced to serve life imprisonment by Nyando Senior Resident Magistrate’s Court vide Sexual Offences Case No 1245 of 2016 and that he appealed vide Kisumu HCCRA No 44 of 2017 which appeal was dismissed on June 25, 2018.
2. He does not mention whether or not he appealed to the Court of Appeal. He claims that he has now reformed and that the court to consider Section 333(2) of the Criminal Procedure Codein resentencing him.
3. I have considered the Petition which is not supported by any documents at all. No proceedings from the lower court or on Appeal were annexed, yet on a 1st appeal, the court serves the Appellant and ODPP with the records of the trial court.
4. I find nothing upon which I can review such sentence imposed on a serious offence of defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act.
5. The Petition is therefore found to be devoid of any merit. It is hereby dismissed.
6. The Petitioner/Convict can file a fresh petition with supporting documents for consideration on merit by this court.
7. Signal/order to issue and served upon the Petitioner in prison.
8. This file is now closed.
9. I so order.
DATED, SIGNED AND DELIVERED AT KISUMU THIS 24TH DAY OF MARCH, 2023R. E. ABURILIJUDGE