[2020] KEHC 5517 (KLR)
The court held that the applicant was entitled to seek leave to appeal out of time against the resentencing decision, particularly in light of the Supreme Court's pronouncement in Muruatetu & Others v Republic, which rendered the mandatory nature of life sentences unconstitutional. Since the application was...
Source-derived case information.
- Citation
- [2020] KEHC 5517 (KLR)
- Parties
- Applicant: Kiio Ndungi Ndolo; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 44 of 2020
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Leave to Appeal Out of Time
- Outcome
- Application allowed; time extended for applicant to file appeal out of time.
- Judges
- GV Odunga
- Legal Topics
- Leave to Appeal Out of Time, Sentencing Principles, Mandatory Sentences, Sexual Offences, Incest, Resentencing
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kiio Ndungi Ndolo
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Application for Leave to Appeal Out of Time
Legal Issues
- 1 Whether the applicant should be granted leave to appeal out of time against the resentencing decision.
- 2 Whether the mandatory nature of life sentences under the Sexual Offences Act is unconstitutional.
Ratio Decidendi
The court held that the applicant was entitled to seek leave to appeal out of time against the resentencing decision, particularly in light of the Supreme Court's pronouncement in Muruatetu & Others v Republic, which rendered the mandatory nature of life sentences unconstitutional. Since the application was unopposed and the applicant had a right to challenge the resentencing, the court exercised its discretion to extend time for filing the appeal. The court further clarified that while life sentences are not unconstitutional per se, their mandatory imposition is, and trial courts must exercise discretion in sentencing.
Court Disposition
Application allowed; time extended for applicant to file appeal out of time.
Orders
- Time is extended to the applicant to file an appeal out of time against the resentencing decision made on 13th March, 2020.
- The applicant is granted leave to amend his grounds of appeal if he deems fit.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
(Coram: Odunga, J)
MISC. CRIMINAL APPLICATION NUMBER 44 OF 2020
BETWEEN
KIIO NDUNGI NDOLO...............................................APPLICANT
VERSUS
REPUBLIC…............................................................RESPONDENT
RULING
1. The Applicant herein, Kiio Ndungi Ndolo, in his application filed on 13th May, 2020 sought orders that he be allowed to appeal out of time and for further orders that this court may deem fit.
2. From the record, the applicant was charged before the Machakos CM’s Criminal Case No. 144 of 2008 with Incest contrary to section 20(1) of the Sexual Offences Act with an alternative charge of Indecent Act. He was found guilty and convicted in the main charge and was sentenced to life imprisonment. However, based on the decision of the Supreme Court in Petition Nos. 14 and 16 of 2015- Muruatetu & Others vs. Republic, this Court set aside the death sentence imposed on the applicant and directed that a sentence re-hearing be undertaken. Upon the same being undertaken the trial court re-affirmed the same sentence.
3. Although this matter was treated as if it was a revision, in actual fact it is not a revision. Life sentences in respect of such offences is not inherently unconstitutional. What is unconstitutional is their prima facie mandatory nature. Accordingly, whereas the trial courts are still at liberty to impose the life sentence, it cannot be imposed simply because the legislative language is couched in mandatory terms.
4. As indicated, what the applicant is seeking herein, and rightly so in my view, is leave to appeal out of time. As the same is not opposed, time is hereby extended to the applicant to file an appeal out of time against the decision on resentencing and made on 13th March, 2020. The applicant is granted leave to amend his grounds of appeal should he deem fit so to do. Let the registry open an appeal file and let the proceedings be typed.
5. This ruling has been delivered online through skype due to the prevailing restrictions occasioned by COVID 19 pandemic.
6. It is so ordered.
Read, signed and delivered online at Machakos this 26th day of May, 2020
G V ODUNGA
JUDGE
Delivered in the presence of:
Mr Ngetich for the Respondent
The Applicant in attendance via Skype
CA Geoffrey