[2024] KEHC 16098 (KLR)
The High Court lacks jurisdiction to rehear or resentence the applicant because the Court of Appeal, a superior court, has already determined the sentence. The principle of stare decisis prohibits this court from reviewing or setting aside decisions of a higher court. While there is jurisprudence suggesting that...
Source-derived case information.
- Citation
- [2024] KEHC 16098 (KLR)
- Parties
- Applicant: Wesley Kemei; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E105 of 2022
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Sentence Rehearing
- Outcome
- application dismissed
- Judges
- JM Nang'ea
- Legal Topics
- Defilement Sentencing, Mandatory Minimum Sentences, Jurisdiction of High Court, Constitutional Challenge to Sentencing, Appellate Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Wesley Kemei
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Application for Sentence Rehearing
Legal Issues
- 1 Whether the High Court has jurisdiction to rehear and resentence the applicant after the Court of Appeal has pronounced itself on the sentence.
- 2 Whether the minimum mandatory sentence for defilement under the Sexual Offences Act is unconstitutional in light of recent jurisprudence.
- 3 Whether the application should have been brought as a substantive constitutional petition.
Ratio Decidendi
The High Court lacks jurisdiction to rehear or resentence the applicant because the Court of Appeal, a superior court, has already determined the sentence. The principle of stare decisis prohibits this court from reviewing or setting aside decisions of a higher court. While there is jurisprudence suggesting that minimum and/or mandatory sentences may be unconstitutional for fettering judicial discretion, any such challenge must be brought as a substantive constitutional petition and escalated through the proper appellate channels. The Supreme Court has clarified that its decision in Muruatetu 1, which declared the mandatory death sentence for murder unconstitutional, is limited to murder...
Court Disposition
application dismissed
Orders
- The application for sentence rehearing is dismissed.
Full Case Text
Judgment text and source record
22 paragraphs
Kemei v Republic (Miscellaneous Criminal Application E105 of 2022) [2024] KEHC 16098 (KLR) (17 December 2024) (Ruling)
Neutral citation: [2024] KEHC 16098 (KLR)
Republic of Kenya
In the High Court at Nakuru
Miscellaneous Criminal Application E105 of 2022
JM Nang'ea, J
December 17, 2024
Between
Wesley Kemei
Applicant
and
Republic
Respondent
Ruling
1. The applicant was tried and convicted of defilement contrary to section 8 ( 1) as read with section 8 (3) of the Sexual Offences Act No. 3 of 2006 before the Magistrate’s Court at Molo in Criminal Case File No. 302 of 2015 and sentenced to 20 years imprisonment which is the minimum sentence prescribed for the offence. He lodged an appeal with this court through Appeal File No. 138 of 2016 which appeal was dismissed. He preferred a second appeal to the Court of Appeal at Nakuru vide File No. 94 of 2019 which was marked as withdrawn by order of the court issued on 27/11/2024.
2. The applicant is now seeking sentence rehearing, complaining that minimum mandantory sentence prescribed for the offence of which he was convicted is unconstitutional. Reliance is placed on Machakos High Court case, Philp Mueke Maingi & Others vs Republic, in which such minimum mandatory minimum sentences prescribed for offences such as the applicant was convicted of herein were declared unconstitutional.
3. The prosecution Counsel (Ms Sang) filed written submissions. in reply arguing that the court has no jurisdiction for the reason that the Court of Appeal which is superior to this court has already pronounced itself on the applicant’s sentence. Referrence is made to the cases of Daniel Otieno Oracha vs Republic ( 2019) eKLR and John Kagunda Kariuki vs Republic (2019) eKLR which underscore the important principle of stare decis that prohibits courts of lower jurisdiction to set aside decisions of superior courts or even courts of the same status. By dint of this principle, therefore, this court is bereft of jurisdiction to resentence the applicant as desired or at all.
4. The Constitutional and Human Rights Court’s decision in consolidated Petitions Nos. 5 and 6 of 2022 ( Ramadhan & 8 0thers vs Attorney-General and Another 2024 KEHC 1173 ( KLR) (6 February 2024) (Judgement) also reached the same conclusion as in the Philip Mueke Maingi & Others supra that minimum and/or mandatory sententences are unconstitutional fo fettering the court’s discretion to determine an appropriate sentence based on the peculiar facts and circumstances of each case. A similar oipinion was expressed in this court’s decision inWilliam Okungu Kittiny vs Republic (2018) eKLR.
5. The Supreme Court in the famous Muruatetu 2 decision has, however, clarified that its earlier judgement in the Muruatetu 1 case declaring the mandatory nature of the death sentence for the offence of murder as unconstitutional only applied to murder cases. The apex court’s more recent decision in Constitutional Petition No. 018 of 2023 (Republic vs Joshua Gichuki Mwangi & Others reiterates the position and exhorts litigants wishing to challenge laws prescribing mandatory and/or minimum sentences for offences other than murder to mount the challenge from the High Court, and if necessary escalate the dispute to the Court of Appeal and on to the Supreme Court, for a final decision to be made.. The Supreme Court’s decision in the Muruatetu 1 case does not therefore apply defilement cases for the reasons given.
6. Before I pen off, it is noted that sometimes the applicant seems to argue this application as a constitutional petition challenging minimum and/or mandatory sentences in defilement cases. If this was the intention, a substantive constitutional petition ought to have been instituted. As it is, this is a Miscellaneous Criminal Application seeking review of the sentence meted out against the applicant.
7. The upshot is that the application is dismissed.
J. M. NANG’EA, JUDGE.RULING DELIVERED THIS 17TH DAY OF DECEMBER, 2024 IN THE PRESENCE OF:The state, Ms SangThe Applicant, presentThe Court Assistant, LepikasJ. M. NANG’EA, JUDGE.