[2024] KEHC 9560 (KLR)
The court found that the applicant had not presented any new and compelling evidence as defined under Article 50(6)(b) of the Constitution. The application was essentially a plea for leniency and mitigation, not a constitutional petition based on new evidence. The applicant's appeal against both conviction and...
Source-derived case information.
- Citation
- [2024] KEHC 9560 (KLR)
- Parties
- Applicant: Mwembe Gereza; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Voi
- Jurisdiction
- Kenya
- Case Number
- Criminal Petition E110 of 2023
- Procedural Posture
- Criminal Petition / Ruling on Application for Review of Sentence
- Outcome
- application dismissed
- Judges
- GMA Dulu
- Legal Topics
- Sentence Review, Incest Offence, Sexual Offences Act, New and Compelling Evidence, Appeal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mwembe Gereza
Applicant
Republic
Respondent
Procedural Posture
Criminal Petition / Ruling on Application for Review of Sentence
Legal Issues
- 1 Whether the applicant has presented new and compelling evidence to warrant review of sentence under Article 50(6)(b) of the Constitution.
- 2 Whether the High Court can review its own substantive decision on sentence after dismissal of an appeal.
- 3 Whether the applicant is entitled to a reduction of sentence based on mitigation and rehabilitation.
Ratio Decidendi
The court found that the applicant had not presented any new and compelling evidence as defined under Article 50(6)(b) of the Constitution. The application was essentially a plea for leniency and mitigation, not a constitutional petition based on new evidence. The applicant's appeal against both conviction and sentence had already been substantively considered and dismissed by the High Court. Therefore, the court held that it could not review its own substantive decision on sentence. The only available avenues for the applicant were to appeal to the Court of Appeal or, when eligible, to apply for sentence review under the prison decongestion Community Service Order programme. As such, the...
Court Disposition
application dismissed
Orders
- The application for review of sentence is dismissed.
Full Case Text
Judgment text and source record
28 paragraphs
Gereza v Republic (Criminal Petition E110 of 2023) [2024] KEHC 9560 (KLR) (9 July 2024) (Ruling)
Neutral citation: [2024] KEHC 9560 (KLR)
Republic of Kenya
In the High Court at Voi
Criminal Petition E110 of 2023
GMA Dulu, J
July 9, 2024
Between
Mwembe Gereza
Applicant
and
Republic
Respondent
Ruling
1. Though this matter was filed in this court as a Constitutional Petition, it was infact an application for review of sentence.
2. I note that the applicant initially stated herein that there was discovery of new and compelling evidence, but when the Prosecuting Counsel objected, during mention date, the victim of the crime Priscilla Mwembe who was present in court, informed this court that the applicant who was her father had merely asked her to forgive him, and that was the reason.
3. Thereafter, the applicant and the Director of Public Prosecutions filed written submissions to the application, the applicant limiting his submissions to sentence only, wherein he sough to mitigate and asked for a lenient sentence. The Director of Public Prosecutions on his part, opposed the request for revision of sentence.
4. Having considered the request and the submissions on both sides. It is clear to me from the documents filed as well as submissions, that there is no discovery of new and compelling evidence herein, as defined in Article 50(6) (b) of the Constitution.
5. In any event, discovery of new and compelling evidence, would only be considered by this court in a proper constitutional petition, not an application for review of sentence like the present one.
6. Coming now to the request for review of sentence, it is clear that this was a case of incest wherein the applicant was the father of the complainant, a girl of 17 years
7. On conviction, he was sentenced to thirty (30) years imprisonment in Voi Magistrate’s Criminal case (SO) No. 2 of 2017.
8. Thereafter, he appealed in Voi High Court Criminal Appeal No. E051 of 2021, and his appeal against both conviction and sentence was dismissed.
9. He has now come back to this same court through the present application, asking for review of sentence on the ground that he is a first offender, that he is a family man, and that his life has been greatly affected by the imprisonment, and that while in prison he has taken advantage of rehabilitation programmes, and annexed his trade test certificates to his submissions, as his evidence of this rehabilitation.
10. I note that under the provisions of Section 20 of the Sexual Offences Act, the maximum statutory sentence for incest with a girl below 18 years, is life imprisonment, and the applicant herein was sentenced to 30 years imprisonment, which means that he was a lucky man.
11. Again, his appeal on sentence having been substantively considered and dismissed by this court, in my view, this same court cannot review its own substantive decision.
12. In my view, the only avenue available to the applicant is either to appeal to the Court of Appeal, or to await until his prison sentence is less than three (3) years, and apply to this court for review of sentence under the general prison decongestion Community service Order programme.
13. Otherwise, I find no merits in this present application for review of sentence, which is hereby dismissed.
DATED, SIGNED AND DELIVERED THIS 9TH DAY OF JULY 2024 IN OPEN COURT AT VOI.GEORGE DULUJUDGEIn the presence of:-Alfred/Trizah – Court AssistantsApplicantMr. Sirima for State