[2019] KEHC 8187 (KLR)
The court held that it lacked jurisdiction to review or resentence the applicant because his sentence of 20 years imprisonment under the Sexual Offences Act had already been affirmed by the High Court in its appellate jurisdiction. The Supreme Court's decision in Muruatetu, which declared the mandatory death...
Source-derived case information.
- Citation
- [2019] KEHC 8187 (KLR)
- Parties
- Applicant: Charles Nyaboe Onjangu; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 17 of 2019
- Procedural Posture
- Miscellaneous Criminal Application / Application for Resentencing After Conviction and Appeal
- Outcome
- application dismissed
- Judges
- DAS Majanja
- Legal Topics
- Defilement Offence, Sentencing Principles, Sexual Offences Act, Jurisdiction of High Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Charles Nyaboe Onjangu
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Application for Resentencing After Conviction and Appeal
Legal Issues
- 1 Whether the High Court has jurisdiction to resentence an applicant convicted and sentenced under the Sexual Offences Act after the sentence was affirmed on appeal.
- 2 Whether the Supreme Court decision in Francis Karioko Muruatetu & Another v. Republic [2017] eKLR applies to sentences under the Sexual Offences Act.
Ratio Decidendi
The court held that it lacked jurisdiction to review or resentence the applicant because his sentence of 20 years imprisonment under the Sexual Offences Act had already been affirmed by the High Court in its appellate jurisdiction. The Supreme Court's decision in Muruatetu, which declared the mandatory death sentence unconstitutional, does not apply to sentences imposed under the Sexual Offences Act. Therefore, the application for resentencing was dismissed as the circumstances did not fall within the scope of the Muruatetu decision or any other legal basis for review.
Court Disposition
application dismissed
Orders
- The application for resentencing is dismissed.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
CORAM: D.S MAJANJA J.
IN THE HIGH COURT OF KENYA
AT KISII
MISC. CRIMINAL APPLICATION NO. 17 OF 2019
CHARLES NYABOE ONJANGU...................................APPLICANT
VERSUS
REPUBLIC....................................................................RESPONDENT
JUDGMENT
1. The applicant, CHARLES NYABOE ONJANGU, was charged and convicted for the offence of defilement contrary to section 8(1) and (3) of the Sexual offences Act in Keroka SRM Criminal Case No. 990 of 2008. He was sentenced to 20 years imprisonement. His first and only appeal; KISII HCCRA No. 55 of 2009 was dismissed.
2. He now seeks resentencing based on the decision of the Supreme Court in FrancisKarioko Muruatetu & Another v. Republic [2017]eKLR where the Supreme Court declared the mandatory death sentence unconstitutional.
3. As the applicant was sentenced to 20 years imprisonment under the Sexual Offences Act, this court has no jurisdiction to review the sentence or resentence the applicant where his sentence has in fact been affirmed by this court executing its appellate jurisdiction. The sentence under the Sexual Offences Act is not contemplated for review under the Francis Karioko Muruatetu decision.
4. I am constrained to dismiss the application and it is hereby dismissed.
Dated and delivered at Kisii this 4th day of April, 2019.
D.S MAJANJA
JUDGE
Mr. Otieno, Senior Prosecution Counsel, instructed by Office of Director of Prosecutions for the respondent.
Applicant in person.