[2021] KEHC 9691 (KLR)
The court found that the applicant had previously filed a similar petition for review of his life sentence, which was dismissed for lack of jurisdiction. As the issues raised in the current application had already been determined in Petition No. 7 of 2020, the doctrine of res judicata applied, barring the court from...
Source-derived case information.
- Citation
- [2021] KEHC 9691 (KLR)
- Parties
- Applicant: FKN; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 128 of 2020
- Procedural Posture
- Criminal Revision / Ruling on Application for Review of Sentence
- Outcome
- application dismissed as res judicata
- Judges
- LM Njuguna
- Legal Topics
- Incest Offence, Sentence Review, Life Imprisonment, Res Judicata, Constitutional Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
FKN
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Application for Review of Sentence
Legal Issues
- 1 Whether the court has jurisdiction to review the applicant's life sentence after all avenues of appeal have been exhausted.
- 2 Whether the application is res judicata given a similar petition was previously dismissed.
- 3 Whether the indefinite nature of a life sentence violates the applicant's constitutional rights.
Ratio Decidendi
The court found that the applicant had previously filed a similar petition for review of his life sentence, which was dismissed for lack of jurisdiction. As the issues raised in the current application had already been determined in Petition No. 7 of 2020, the doctrine of res judicata applied, barring the court from entertaining the matter again. The court emphasized that it lacked jurisdiction to review the sentence further, and the application was therefore dismissed. The court also noted the seriousness of the offence and the applicant's relationship to the complainant, but these factors did not override the procedural bar of res judicata.
Court Disposition
application dismissed as res judicata
Orders
- The application for review of sentence is dismissed as res judicata.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT EMBU
CRIMINAL REVISION NO. 128 OF 2020
FKN................................................................................APPLICANT
VERSUS
REPUBLIC...............................................................RESPONDENT
RULING
1. The applicant herein has moved this court by way of an application for review of sentence dated the 24th September, 2020.
2. He was charged in Criminal Case No. 926 of 2011 at Embu Law Court, with the offence of Incest contrary to Section 20(1) of the Sexual Offences Act No. 3 of 2006 in which he was tried and upon being found guilty was sentenced to life imprisonment. He filed an appeal being Criminal Appeal No. 32 of 2012 at Embu against the sentence but the appeal was dismissed.
3. Dissatisfied with the decision of the High Court he challenged the decision in the court of Appeal at Nyeri, but the appeal was dismissed and sentence upheld. He has now moved the court seeking review of the imposed life sentence and has relied on the following grounds; that he has exhausted all the avenues of appeal; that he is entitled for the guaranteed benefit of the law under Article 27(1)(2)(4) of the Constitution; that he is a first offender and hence entitled for the least severe punishment as enshrined in Article 59(2)(p) of the Constitution and that the indefinite nature of life sentence has disenfranchised him the rights to personal dignity hence harsh and excessive.
4. Counsel for the respondent opposed the application on the ground that the applicant had filed a similar application in Petition No. 7 of 2020. She was however not opposed to the reduction of sentence to a definite period. In view of developing jurisprudence. She urged the court to take into account the seriousness of the offence and the age of the complainant and the fact that the applicant is the father of the complainant who is expected to protect her.
5. The court has considered the application and the submissions by the parties. As submitted by the applicant, he has pursued all the avenues open to him for appeal up to the Court of Appeal wherein his appeal was dismissed.
6. Thereafter he petitioned the High Court for revision on the strength of Francis Karioko Muruatetu & Another Vs Republic [2017] eKLR which petition was heard and the court dismissed the same having found that it lacked jurisdiction to entertain it.
7. In the circumstances, I find that the petition herein is res judicata and it is hereby dismissed.
8. It is so ordered.
Delivered, datedandsignedatEmbuthis 20thday ofJanuary, 2021.
L. NJUGUNA
JUDGE
…………………………………………..for the Appellant
………………………………………..for the Respondent