[2020] KEHC 1042 (KLR)
The High Court lacks jurisdiction to entertain a petition for re-sentencing under Article 50(6) of the Constitution where the petitioner has not presented new and compelling evidence. The conviction and sentence were rendered under the correct legal provisions, and there is no defect apparent on the face of the...
Source-derived case information.
- Citation
- [2020] KEHC 1042 (KLR)
- Parties
- Petitioner: Charo Mwenyi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Petition 3 of 2020
- Procedural Posture
- Constitutional Petition / Ruling on Petition for Re Sentencing After Conviction and Unsuccessful Appeal
- Outcome
- petition dismissed
- Judges
- DB Nyakundi
- Legal Topics
- Defilement Offence, Resentencing Jurisdiction, New and Compelling Evidence, Sexual Offences Act, Article 50 Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Charo Mwenyi
Petitioner
Republic
Respondent
Procedural Posture
Constitutional Petition / Ruling on Petition for Re Sentencing After Conviction and Unsuccessful Appeal
Legal Issues
- 1 Whether the High Court has jurisdiction to entertain a petition for re-sentencing under Article 50(6) of the Constitution after conviction and unsuccessful appeal.
- 2 Whether the petitioner's application discloses new and compelling evidence to warrant a retrial or re-sentencing.
- 3 Whether the conviction and sentence under the Sexual Offences Act can be challenged through constitutional petition in the absence of new and compelling evidence.
Ratio Decidendi
The High Court lacks jurisdiction to entertain a petition for re-sentencing under Article 50(6) of the Constitution where the petitioner has not presented new and compelling evidence. The conviction and sentence were rendered under the correct legal provisions, and there is no defect apparent on the face of the judgment to warrant a retrial or re-sentencing. The petition is therefore devoid of merit and is dismissed. The Court emphasized the need for a purposive interpretation of the Constitution but found that the threshold for review had not been met in this case.
Court Disposition
petition dismissed
Orders
- The petition against conviction and sentence is dismissed for lack of merit.
- No retrial or re-sentencing is granted.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MALINDI
PETITION NO. 3 OF 2020
CHARO MWENI.............................................................................PETITIONER
VERSUS
REPUBLIC......................................................................................RESPONDENT
Coram: Hon. Justice R. Nyakundi
Petitioner in person
Mr. Alenga for the state
RULING
On 17. 8.2010 the petitioner was charged and tried with the offence of defilement of a girl contrary to Section 8 (3) of the Sexual Offences Act. The trial proceeded in earnest and the end of it the petitioner was sentenced to 15 years imprisonment.
Being aggrieved with the Judgment of the trial Court he preferred an appeal to the High Court. On appeal, the appellate and division of the Court dismissed both conviction and sentence. There is no evidence on record that the petitioner filed a further appeal to the Court of Appeal. As the Law stands the High Court has jurisdiction to entertain the petitioner’s petition for re-sentencing under Article 50 (6) (a) and (b) of the Constitution.
The review requested in this case does not fall within the jurisdictional nature of the review contemplated under the aforesaid Article of the Constitution. A conviction and sentence rendered under the right provisions of the Sexual Offences Act clearly do not constitute new and compelling evidence to warrant the relief for a fresh trial on sentence. On perusal of the record there is no defect apparent on the face of the Judgment to warrant a retrial on the merits.
Time has come for the Court to shy away from the recent trends on enforcement of rights and remedies sought under the Constitution, which of late have become uncertain, technical, artificial and most importantly non-purposive.
I hold the view that a purposive approach on interpretation of the Constitution will reinforce the protection of the petitioner’s fundamental rights to liberty, dignity and equality before the Law and the right not be deprived of them except in accordance with the principles of fundamental justice.
In the opinion of the Court, the petition and affidavit evidence proves without a doubt it has not ripened under Article 50 (6) (a) & (b) of the Constitution to be entertained on the merits by this Court. The Court of Appeal as the final arbiter of whether the conviction and sentence pronounced by two Courts is against Law in force is yet to hear and determine the appeal.
Disposition
The petition against conviction and sentence of the petitioner is dismissed for devoid of merits and an attempt to directly invoke the Constitution to validate a retrial is not curable.
It is so ordered.
DATED, SIGNED AND DELIVERED AT MALINDI THIS 16TH DAY OF DECEMBER 2020
............................
R. NYAKUNDI
JUDGE