[2021] KEHC 481 (KLR)
The court held that it lacked jurisdiction to review the petitioner’s sentence of life imprisonment for defilement because the petitioner had exhausted his right of appeal and failed to present any new and compelling evidence as required under Article 50(6) of the Constitution. The court further found that the...
Source-derived case information.
- Citation
- [2021] KEHC 481 (KLR)
- Parties
- Petitioner: Kazungu Yaa Mweri; Respondent: Director of Public Prosecutions
- Court
- High Court
- Court Station
- High Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Petition E017 of 2021
- Procedural Posture
- Constitutional Petition / Ruling on Petition for Review of Sentence
- Outcome
- petition dismissed
- Legal Topics
- Sentence Review, Defilement Offence, Mandatory Sentencing, Jurisdiction of High Court, New and Compelling Evidence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kazungu Yaa Mweri
Petitioner
Director of Public Prosecutions
Respondent
Procedural Posture
Constitutional Petition / Ruling on Petition for Review of Sentence
Legal Issues
- 1 Whether the High Court has jurisdiction to review a sentence of life imprisonment for defilement after exhaustion of appellate remedies.
- 2 Whether the petitioner has presented new and compelling evidence to warrant review of the sentence under Article 50(6) of the Constitution.
- 3 Whether the mandatory sentencing provisions under the Sexual Offences Act are unconstitutional in light of the Supreme Court decision in Francis Muruatetu.
Ratio Decidendi
The court held that it lacked jurisdiction to review the petitioner’s sentence of life imprisonment for defilement because the petitioner had exhausted his right of appeal and failed to present any new and compelling evidence as required under Article 50(6) of the Constitution. The court further found that the Supreme Court’s decision in Francis K. Muruatetu v R did not invalidate mandatory sentences under the Sexual Offences Act, and therefore, the petitioner could not benefit from a lesser sentence on that basis. The petition was found to be unconstitutionally vague and lacking in merit, and continued interference with such sentences without sufficient material would undermine the...
Court Disposition
petition dismissed
Orders
- The petition for review of sentence is denied.
- No order as to costs.
Full Case Text
Judgment text and source record
40 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MALINDI
PETITION NO. E017 OF 2021
(From Original Criminal case No.77 of 2011 at Kaloleni)
THE CONSTITUTION OF KENYA 2010(SUPERVISORY JURISDICTION AND PROTECTION
FUNDAMENTAL RIGHTS AND FREEDOMS OF AN INDIVIDUAL HIGH COURT PRACTICE RULES 2013.
AND
IN THE MATTER OF ARTICLE 22 (1) OF THE CONSTITUTION
AND
IN THE MATTER OF ARTICLES 23 (1) OF THE CONSTITUTION
IN THE MATTER OF ARTICLE 19,20,21,22,23,24,25,27,28,48,50,258 AND 259 OF THE CONSTITUTION
AND
IN THE MATTER OF SECTION 8 (1) AS READ WITH 8 (2) OF THE SEXUAL OFFENCES ACT NO. 3 OF 2006
BETWEEN
KAZUNGU YAA MWERI.................................................................................................PETITIONER
VERSUS
DIRECTOR OF PUBLIC PROSECUTION..................................................................RESPONDENT
CORAM: Hon. Justice R. Nyakundi
Kazungu Yaa Mweri– Petitioner
Director of Public Prosecutions
R U L I N G
The Petitioner has approached this Court by way of a Petition expressed to be brought under Article 19,20,21,22,23,24,25,28,48,50,258 and 259, seeking a review of the life imprisonment imposed by the trial court and later confirmed by the High Court for the offence of defilement contrary to section 8 (1) and subsection (2) of the Sexual Offences Act.
From the brief summary the Petitioner was charged, tried and convicted of defilement of a child contrary to section 8 (1) as read with subsection (2) of the Act. The particulars of the charge were that on 15. 3.2011 at [Particulars Withheld] village, the Petitioner committed an act which causes penetration of a male genital organ, anus of TJ, a child aged 6 years.
In the petition, the petitioner relies on Article 50(2) (a) of the Constitution for that sentence to be reviewed.
Determination
Essentially, for the petitioner to succeed in this petition, he must demonstrate that seized of the matter exceeded their jurisdiction and acted contrary to the provisions of the law in detailing which denied him a right to a lesser sentence. Besides, these grounds the law calls upon the petitioner to demonstrate that both the trial court and subsequent decision of the High Court were tainted with non-compliance and other material procedures calculated at prejudicing his rights under the Constitution, except in clearest of cases, the High Court is not required to re-evaluate the evidence in a decision on sentence which has been conclusively determined by the same court sitting at different locations and time.
He has exhausted his right of appeal to the Apex Court. Secondly, in absence of the Doctrine of exhaustion there is existence of new and compelling evidence to warrant review of the final Judgment.
On second review it is sufficient to decide whether the High Court on appeal approaching its task applied or failed to apply the settled principles.
From the record, none of those defects or errors apparent on the face of the judgement pronounced has been shown by the petitioner whereas, it is settled that the Supreme Court in Francis K. Muruatetu V R[2017]eKLR struck down the mandatory clause on sentence under section 204 of the Penal Code, it did not in any way invalidate the sentences under the Sexual Offences Act. Therefore, if a specific case is assessed on its own circumstances and the applicant ought to benefit for to some degree to a lesser sentence in that context, the court is at liberty to review the sentence.
In the instant case the petitioner’s argument is under the canons of constitution Article 50 (6) (a) (b). In my view, the constitution and the features necessary to justify imposition of a life imprisonment sentence.
There is no compelling evidence affecting the petitioner’s sentence to impact on the fairness, integrity or public interest. This court rejects the petitioner’s argument to review the sentence for lack of jurisdiction under Article 50 (6) (a) (b) of the constitution based on lack of material that he has exhausted his right of appeal to the Court of Appeal. Secondly, the petitioner case is ineligible for a sentence review because his plea lacks new and compelling evidence to interfere with the settling.
Applying the frame work under the constitution, the petition as filed is unconstitutionally vague for the Court to alter the sentence as prayed. Moreover, the court finds, continued interference with those sentences without sufficient material would undermine the goals of equality, evenhandedness, predictability and consistency served by the state decisions. As a result the petition is denied.
DATED, SIGNED AND DELIVERED AT MALINDI THIS 30TH DAY OF JULY, 2021
..........................
R. NYAKUNDI
JUDGE
In the presence of
Mr. Mwangi for the state
NB:In view of the Public Order No. 2 of 2021 and subsequent circular dated 28th March, 2021 from the Office of the Chief Justice on the declarations of measures restricting court operations due to the third wave of Covid-19 pandemic this ruling has been delivered online to the last known email address thereby waiving Order 21 [1] of the Civil Procedure Rules.