[2020] KEHC 9154 (KLR)
The court held that the applicant, having been sentenced to 20 years imprisonment and not to death, is not a beneficiary of the Supreme Court decision in Muruatetu, which applies only to those sentenced to the mandatory death penalty. Furthermore, the High Court is functus officio after having already determined the...
Source-derived case information.
- Citation
- [2020] KEHC 9154 (KLR)
- Parties
- Applicant: Daniel Mutinda Munyilu; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Appeal 134 of 2019
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Resentencing
- Outcome
- application dismissed
- Judges
- BC Koech
- Legal Topics
- Defilement Offence, Resentencing, Mandatory Sentences, Sexual Offences Act, Functus Officio, Constitutional Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Daniel Mutinda Munyilu
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Resentencing
Legal Issues
- 1 Whether the applicant is entitled to resentencing following the Supreme Court decision in Muruatetu.
- 2 Whether the High Court is functus officio and thus lacks jurisdiction to entertain the application for resentencing.
Ratio Decidendi
The court held that the applicant, having been sentenced to 20 years imprisonment and not to death, is not a beneficiary of the Supreme Court decision in Muruatetu, which applies only to those sentenced to the mandatory death penalty. Furthermore, the High Court is functus officio after having already determined the applicant's appeal against conviction and sentence, and thus lacks jurisdiction to entertain a resentencing application. The proper forum for such an application would be the Court of Appeal. Consequently, the application for resentencing is without merit and is dismissed.
Court Disposition
application dismissed
Orders
- The application for resentencing is dismissed.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
MISCELLANEOUS CRIMINAL APPL. NO. 134 OF 2019
DANIEL MUTINDA MUNYILU.............................APPLICANT
VERSUS
REPUBLIC.............................................................RESPONDENT
RULING ON RESENTENCING
1. Daniel Mutinda Munyilu, the Applicant herein was charged with an offence of defilement contrary to section 8(1) as read with Section 8(3) of the Sexual Offences Act.
2. The Applicant pleaded not guilty and the case proceeded to full hearing. He was convicted of the count with which he was charged and that the trial court sentenced him to serve 20 years imprisonment.
3. The Applicant was aggrieved by that decision and filed an appeal to the High Court against both the conviction and sentence. The appeal was duly heard. A judgment was delivered on 30. 11. 2016 by Lady Justice P. Nyamweya. The judgment confirmed the conviction and sentence and thus his appeal was dismissed.
4. The Applicant did not appeal against the decision of the High Court and opted to file a new application before the High Court in which he seeks resentencing. Pursuant to the Supreme Court decision in Francis Karioko Muruatetu & Another v Republic & 5 Others [2016] eKLRdeclaring the mandatory death sentence unconstitutional, several applications for resentencing have been lodged before the courts. Article 50(2)(p) of the constitution provides that an accused person has a right to the benefit of the least severe of the prescribed punishments for an offence, if the prescribed punishment for the offence has been changed between the time that the offence was committed and the time of sentencing. In S v. Ndlovu 2012 (1) ZLR 393 the Zambian High Court observed that sentencing must utilise an engendered approach and a constitutional and human rights perspective and from the import of Article 50(2) (p) of the constitution, the applicant is not entitled to resentencing.
5. The cited case has necessitated resentencing of all persons previously sentenced to the mandatory death sentence and the applicant was not sentenced to death but to 20 years imprisonment. I find that he is not a beneficiary of the Muruatetu case (supra).
6. Further as pointed out by the state, this is an inappropriate application as the court is functus officio. Such an application can only be entertained by a higher Court – the Court of Appeal. This application lacks merit and is dismissed.
Orders accordingly.
Dated and delivered at Machakos this 16th day of January, 2020.
D. K. Kemei
Judge