[2022] KEHC 16402 (KLR)
The court determined that it could not proceed to review the applicant's sentence due to the absence of complete and certified records from both the trial and appellate courts. The judge emphasized that the proper forum for the application is the court where the original proceedings and records are available, namely...
Source-derived case information.
- Citation
- [2022] KEHC 16402 (KLR)
- Parties
- Applicant: ENN; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E186 of 2022
- Procedural Posture
- Miscellaneous Criminal Application / Application for Review of Sentence
- Outcome
- Application transferred to the High Court at Nakuru for determination.
- Judges
- A. Ong’injo
- Legal Topics
- Sentencing Review, Defilement, Incest, Sexual Offences Act, Jurisdiction, Transfer of Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
ENN
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Application for Review of Sentence
Legal Issues
- 1 Whether the High Court at Mombasa has jurisdiction to review the applicant's sentence in the absence of complete records from the trial and appellate courts.
- 2 Whether emerging jurisprudence allows for the exercise of discretion in sentencing under the Sexual Offences Act.
Ratio Decidendi
The court determined that it could not proceed to review the applicant's sentence due to the absence of complete and certified records from both the trial and appellate courts. The judge emphasized that the proper forum for the application is the court where the original proceedings and records are available, namely Nakuru. Accordingly, the application was transferred to the High Court at Nakuru for determination, as only that court would have ready access to the necessary files and could take appropriate action based on the full record. The court did not make a finding on the merits of the applicant's arguments regarding sentencing discretion or proportionality, deferring those issues to...
Court Disposition
Application transferred to the High Court at Nakuru for determination.
Orders
- The application is transferred to the High Court at Nakuru for determination.
- The Deputy Registrar in Nakuru is directed to take necessary action.
Full Case Text
Judgment text and source record
21 paragraphs
ENN v Republic (Miscellaneous Criminal Application E186 of 2022) [2022] KEHC 16402 (KLR) (22 November 2022) (Order)
Neutral citation: [2022] KEHC 16402 (KLR)
Republic of Kenya
In the High Court at Mombasa
Miscellaneous Criminal Application E186 of 2022
A. Ong’injo, J
November 22, 2022
Between
ENN
Applicant
and
Republic
Respondent
Order
1. The applicant herein was charged and convicted in Nakuru CMC CR Case No 168 of 2012 for the offence of defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act No 3 of 2006. He was sentenced to serve life imprisonment.
2. On appeal in Nakuru HC CR A No 270 of 2014 the court found that evidence adduced fitted the offence of incest contrary to section 20(1) of the Sexual Offence Act. The conviction was therefore substituted to that for offence of incest and sentence substituted to 30 years imprisonment.
3. The applicant prays for review of the term of imprisonment on account of holding in Misc Application No E014 of 2021 at Narok Baragoi Rotikin vs Republic (2022) eKLR where Justice FM Gukonyo stated:-“…whereas the applicant should pay for his crime, and act as deterrent for such debauchery, I should also give the applicant to be re-integrated back into society and be a productive citizen. Life sentence may not achieve these purposes accordingly; I set aside the life sentence and inlieu thereof sentence him to 25 years imprisonment”.
4. The applicant argued that emerging inresprudence is a clear testimony that the courts have realized their rightful position particualarly at the sentencing stage that they are clothed with jurisdictional discretion to impose these sentences that are proportionate to the level of criminal culpability of offenders in matters tried under the penal laws which are worded in mandatory terms.
5. I have tried to search for the Appeal no 270 of 2014 in Kenya Law in vain and the copy of judgment in the said appeal is incomplete and is not certified. The proceedings in the trial court are also missing and the best that this court can do is to have this application transferred to Nakuru where matter originated for ease of reference to the proceedings of the trial court which are most likely in the appeal file for determination.
6. The Deputy Registrar in Nakuru will then be able to take necessary action.
DATED, SIGNED AND DELIVERED AT MOMBASA THIS 22ND DAY OF NOVEMBER, 2022HON. LADY JUSTICE A. ONG’INJOJUDGE