[2021] KEHC 1915 (KLR)
The court held that the petitioner's request for resentencing could not be entertained because the Supreme Court's decision in Muruatetu, which allows for resentencing in cases of mandatory death sentences for murder, does not extend to convictions for defilement. The Supreme Court's guidelines issued on 6th July...
Source-derived case information.
- Citation
- [2021] KEHC 1915 (KLR)
- Parties
- Appellant: Francis Musyoka Nzau; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Petition 27 of 2020
- Procedural Posture
- Constitutional Petition / Judgment
- Outcome
- petition dismissed
- Judges
- CA Otieno
- Legal Topics
- Defilement Offence, Sentencing Principles, Sexual Offences Act, Resentencing Petitions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Francis Musyoka Nzau
Appellant
Republic
Respondent
Procedural Posture
Constitutional Petition / Judgment
Legal Issues
- 1 Whether the petitioner is entitled to resentencing for the offence of defilement in light of the Supreme Court decision in Muruatetu.
- 2 Whether the life sentence imposed on the petitioner should be substituted with a lesser sentence.
Ratio Decidendi
The court held that the petitioner's request for resentencing could not be entertained because the Supreme Court's decision in Muruatetu, which allows for resentencing in cases of mandatory death sentences for murder, does not extend to convictions for defilement. The Supreme Court's guidelines issued on 6th July 2021 clarified that Muruatetu is inapplicable to offences other than murder. As the petitioner was convicted and sentenced under the Sexual Offences Act for defilement, the prescribed sentence of life imprisonment stands, and there is no legal basis for the court to interfere with the sentence. The petition was therefore dismissed for lack of merit.
Court Disposition
petition dismissed
Orders
- The petition is dismissed for lack of merit.
Full Case Text
Judgment text and source record
18 paragraphs
THE REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MERU
PETITION NO. 27 OF 2020
(CONSOLIDATED WITH PETITION NO. 194 OF 2018)
FRANCIS MUSYOKA NZAU.....PETITIONER
VERSUS
REPUBLIC...................................RESPONDENT
JUDGMENT
1. The petitioner herein was charged before the court at Meru CMCCR 2072 of 2006, was tried and convicted of the offence of defilement contrary to Section 8(1) (2) of the Sexual Offenses Act No. 3 of 2006, in Meru Criminal Case No. 2072 of 2006. at the end of the trial, he was found guilty as charged and sentenced to serve life imprisonment
2. He appealed against that decision in High Court at Meru in Criminal Appeal No. 78 of 2008 lost, did not lose the hope and appealed to the Court of Appeal in Criminal Appeal No.76 of 2014. Nonetheless, in both instances, his appeals were dismissed and the sentence upheld.
3. The petitioner has now approached the court pleading with the court to give him a lesser sentence, other than life. In his submissions filed on 27/8/2020, he confirms that he has undergone several bible courses to help know God and be a better citizen.
4. In urging the petition, and unlike in most of these petitions where the petitioners appear in person, no written submissions were filed with the petitioner making very brief oral submissions. His plea was that he be given any lesser sentence other than life sentence
5. In opposing the petition, the prosecution contends that the petitioner plea is not tenable for the reasons that he was not convicted of murder and thus eligible to re-sentencing in terms of the decision of the Supreme court in Muruatetu’s case.
6. For the reason that the petitioner was charged and convicted of the offence of defilement and not murder, the case of Francis Karioko Muruatetu &Another v Republic(2018)eKLR is inapplicable herein, as it was decreed by the Supreme Court in its guidelines on 6th July 2021. The inescapable conclusion is that the petition lacks merit and is dismissed.
DATED SIGNED AND DELIVERED AT MERU THIS 19TH DAY OF NOVEMBER, 2021
PATRICK J.O OTIENO
JUDGE