[2021] KEHC 1923 (KLR)
The court held that the Supreme Court's decision in Muruatetu and the subsequent guidelines are expressly limited to sentences for murder under sections 203 and 204 of the Penal Code. Since the petitioner was convicted of defilement under the Sexual Offences Act and not murder, he is not eligible for resentencing...
Source-derived case information.
- Citation
- [2021] KEHC 1923 (KLR)
- Parties
- Petitioner: Hesbon Kiruja Murithi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Petition 29 of 2020
- Procedural Posture
- Constitutional Petition / Judgment
- Outcome
- petition dismissed
- Judges
- CA Otieno
- Legal Topics
- Defilement Offences, Resentencing Applications, Sexual Offences Act, Supreme Court Guidelines
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Hesbon Kiruja Murithi
Petitioner
Republic
Respondent
Procedural Posture
Constitutional Petition / Judgment
Legal Issues
- 1 Whether the Supreme Court decision in Muruatetu applies to sentences for defilement under the Sexual Offences Act.
- 2 Whether the petitioner is eligible for resentencing based on the Supreme Court guidelines.
Ratio Decidendi
The court held that the Supreme Court's decision in Muruatetu and the subsequent guidelines are expressly limited to sentences for murder under sections 203 and 204 of the Penal Code. Since the petitioner was convicted of defilement under the Sexual Offences Act and not murder, he is not eligible for resentencing under the Muruatetu framework. The petitioner's arguments regarding reformation and time spent in remand do not override the clear limitation set by the Supreme Court. Consequently, the petition for resentencing was dismissed.
Court Disposition
petition dismissed
Orders
- The petition for resentencing is dismissed.
Full Case Text
Judgment text and source record
24 paragraphs
THE REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MERU
PETITION NO. 29 OF 2020
(CONSOLIDATED WITH PETITION NO. 43 OF 2019)
HESBON KIRUJA MURITHI...........................................................PETITIONER
VERSUS
REPUBLIC.......................................................................................RESPONDENT
JUDGMENT
1. The petitioner herein was charged with and convicted of the offence of defilement contrary to Section 8(1) (2) of the Sexual Offences Act No. 3 of 2006, in Nkubu Criminal Case No. 363 of 2008 and subsequently sentenced to serve a life imprisonment.
2. He appealed against that decision in High Court, Criminal Appeal No. 11 of 2013 had the appeal dismissed then proceeded to the Court of Appeal in Criminal Appeal No.58 of 2016, lost a third time when his appeal was dismissed and the sentence upheld.
3. He has now preferred this petition pleading that the court be pleased to resentence him pursuant to the decision by the Supreme Court in Francis Francis Karioko Muruatetu & another v Republic; Katiba Institute & 5 others (Amicus Curiae) [2021] eKLR
4. In his written submissions filed on 1/9/2020, the petitioner urges the court to resentence him considering that he has learned his lesson while in prison, and he has also reformed for which he has exhibited to certificates showing that he has undertaken a course offered by Prison Fellowship in conjunction with Kenya Prison service. He beseeches the court to take into consideration the period he spent in remand as provided for under section 333(2) of the Criminal Procedure Code.
5. In opposition to the request, the prosecution contends that the petitioner is not eligible to re-sentencing in view of the Supreme Court’s directives issued on 6/7/2021.
6. It is the case that the petitioner was not charged tried and convicted for murder but defilement. The supreme court in its directions of 6. 7.2021 did say unequivocally that ‘the decision of Muruatetu and these guidelines apply only in respect to sentences of murder under Sections 203 and 204 of the Penal Code’.
7. I therefore agree with the submissions by the prosecution that the petitioner is not eligible to re-sentencing, as he was charged and convicted with defilement, and not murder. Accordingly, the petition is hereby 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 state
PATRICK J.O OTIENO
JUDGE