[2021] KEHC 1995 (KLR)
The court held that the Supreme Court's decision in Muruatetu is only applicable to mandatory death sentences for murder and does not extend to sentences under the Sexual Offences Act. Furthermore, since the petitioner's sentence had already been considered and determined on appeal by both the High Court and the...
Source-derived case information.
- Citation
- [2021] KEHC 1995 (KLR)
- Parties
- Appellant: Geoffrey Kionyi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Petition 26 of 2020
- Procedural Posture
- Constitutional Petition / Judgment
- Outcome
- petition dismissed
- Judges
- CA Otieno
- Legal Topics
- Resentencing, Mandatory Sentences, Sexual Offences, Application of Supreme Court Decisions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Geoffrey Kionyi
Appellant
Republic
Respondent
Procedural Posture
Constitutional Petition / Judgment
Legal Issues
- 1 Whether the Supreme Court decision in Francis Karioko Muruatetu & another v Republic [2017] eKLR applies to mandatory sentences under the Sexual Offences Act.
- 2 Whether the High Court can entertain a re-sentencing application where the sentence has already been considered and determined on appeal.
Ratio Decidendi
The court held that the Supreme Court's decision in Muruatetu is only applicable to mandatory death sentences for murder and does not extend to sentences under the Sexual Offences Act. Furthermore, since the petitioner's sentence had already been considered and determined on appeal by both the High Court and the Court of Appeal, the High Court could not entertain a further application for re-sentencing. The application was therefore dismissed as it was not properly before the court.
Court Disposition
petition dismissed
Orders
- The application for re-sentencing is dismissed.
Full Case Text
Judgment text and source record
22 paragraphs
THE REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MERU
PETITION NO. 26 OF 2020
GEOFFREY KIONYI..................................................................PETITIONER
VERSUS
REPUBLIC..................................................................................RESPONDENT
JUDGMENT
1. The petitioner herein was charged and convicted of the offence of defilement contrary to Section 8(1) (2) of the Sexual Offences Act No. 3 of 2006, in Marimanti Criminal Case No. 307 of 2008. He was found guilty and sentenced to 15 years imprisonment. He appealed against that decision in High Court Criminal Appeal No. 77 of 2009. That appeal was dismissed and the sentence enhance to life imprisonment. He subsequently lodged a second appeal in the Court of Appeal in Criminal Appeal No. 270 of 2012, which was similarly dismissed.
2. He then moved this court through a notice of motion dated 22/7/2020, expressed to be premised on the provisions of Section 20(1) of the Sexual Offenses Act No. 3 of 2006, Articles 23(1), 165(3)(b)(d)(i), 50(2), 25(c)(d), 51(1), 163(7) of the Constitution, principally seeking that the court be pleased to re-sentence him pursuant to the Supreme Court’s judgement dated 14/12/2017 in Consolidated petition No. 15 & 16 of 2015 between Francis Karioko Muruatetu & ano v Republic.
3. In the petition, he contends that the trial court did not consider his mitigating factors nor did it give regard to the mandatory nature of the sentence under Section 8(1)(2) of the Sexual Offenses as unconstitutional. He further contends that for the 11 years he has been in incarceration, he has undergone various rehabilitation programs hence he is ready to contribute to the Nation’s development through legal means and thus considers himself deserving of a reduced sentence.
4. In opposing the request, the prosecution rigorously opposed the petition and prayed for its dismissal on the basis that only those convicted of murder and given the mandatory death sentence have the remedy of seeking re-sentencing.
5. It is in no doubt that the Supreme Court’s directives issued on 6/7/2021, decreed that the decision in Francis Karioko Muruatetu & another v Republic [2017] eKLR is only applicable to the offence of murder. That notwithstanding however, here this court and the court of appeal have had the chance to consider the sentence meted to the petitioner on the merit. It would be a very untidy situation for this court to reconsider the same matter a second time without appearing to review itself. I find that where the question of sentence has been considered on appeal and decided on the merits, no request for re-sentencing presents itself tor determination by this court a second time.
6. On that basis I find the application not to lie and thus order it dismissed.
DATED SIGNED AND DELIVERED AT MERU THIS 19TH DAY OF NOVEMBER, 2021
Patrick J.O Otieno
Judge
In presence of
Petitioner in person
Mr. Maina for the prosecution
Patrick J.O Otieno
Judge