[2024] KEHC 4366 (KLR)
The court found that the applicant's prayer for a lenient re-sentence had already been addressed and determined in previous proceedings, specifically in Criminal Appeal No. 86 of 2019, where the appellate court considered the applicant's status as a first offender, the circumstances of the offence, and the trial...
Source-derived case information.
- Citation
- [2024] KEHC 4366 (KLR)
- Parties
- Applicant: Mwakamsha Kazungu Kinango; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E170 of 2023
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Re Sentencing
- Outcome
- application dismissed
- Judges
- A. Ong’injo
- Legal Topics
- Re Sentencing, Unconstitutional Sentencing, Judicial Discretion, Mitigation, Mandatory Minimum Sentences
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mwakamsha Kazungu Kinango
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Application for Re Sentencing
Legal Issues
- 1 Whether the applicant is entitled to a lenient re-sentence based on the alleged unconstitutionality of the current sentence.
- 2 Whether the issue of sentencing has already been conclusively determined in prior proceedings.
Ratio Decidendi
The court found that the applicant's prayer for a lenient re-sentence had already been addressed and determined in previous proceedings, specifically in Criminal Appeal No. 86 of 2019, where the appellate court considered the applicant's status as a first offender, the circumstances of the offence, and the trial Magistrate's exercise of discretion in sentencing. The appellate court found no reason to interfere with the sentence, confirming that the trial Magistrate was not constrained by the minimum mandatory sentence and had properly weighed the seriousness of the offence. As such, the present application was deemed to have been overtaken by events, and there was no basis for the court...
Court Disposition
application dismissed
Orders
- The application for re-sentencing is dismissed.
- No orders as to costs.
Full Case Text
Judgment text and source record
19 paragraphs
Kinango v Republic (Miscellaneous Criminal Application E170 of 2023) [2024] KEHC 4366 (KLR) (15 March 2024) (Ruling)
Neutral citation: [2024] KEHC 4366 (KLR)
Republic of Kenya
In the High Court at Mombasa
Miscellaneous Criminal Application E170 of 2023
A. Ong’injo, J
March 15, 2024
Between
Mwakamsha Kazungu Kinango
Applicant
and
Republic
Respondent
Ruling
1. The Applicant sought that this Court consider his mitigation and give him a lenient re-sentence based on the holding in Machakos High Court Petition No. E017 of 2021 as his current sentence is unconstitutional.
2. In CR.A. No. 86 of 2019 Mwakamsha Kazungu Kinango v Republic, Nyakundi J while dismissing the applicants appeal had this to say in relation to the sentence:-“The Appellant was a 1st offender, however, he took advantage of the complainant who is disabled being partially blind and when confronted had proposed to conceal the offence by offering to marry the complainant”.
3. The trial Magistrate in passing sentence was not constrained by the minimum mandatory sentence as prescribed but weighed the seriousness of the offence and exercised her judicial discretion. I find no reason to interfere with the sentence of the trial Magistrate.
4. This confirms that the prayer the applicant seeks before this court was already dealt with and therefore overtaken by events.
DATED, SIGNED AND DELIVERED IN OPEN COURT/ONLINE THROUGH MS TEAMS, THIS 15TH DAY OF MARCH 2024HON. LADY JUSTICE A. ONG’INJOJUDGEIn the presence of: -Etropia - Court AssistantMr. Ngiri for the RespondentHON. LADY JUSTICE A. ONG’INJOJUDGE