[2020] KEHC 6529 (KLR)
The High Court held that it was functus officio, having already determined the applicant's appeal on both conviction and sentence. The court found that the Supreme Court's decision in Muruatetu, which declared the mandatory death sentence unconstitutional, did not apply to the applicant's case as he was sentenced to...
Source-derived case information.
- Citation
- [2020] KEHC 6529 (KLR)
- Parties
- Applicant: Kioko Boniface Mutuli; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 119 of 2019
- Procedural Posture
- Miscellaneous Application / Ruling on Resentencing Application After Conviction and Appeal
- Outcome
- application dismissed
- Legal Topics
- Defilement, Resentencing, Mandatory Sentences, Constitutional Rights, Appeals, Jurisdiction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kioko Boniface Mutuli
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Resentencing Application After Conviction and Appeal
Legal Issues
- 1 Whether the High Court has jurisdiction to entertain a resentencing application after it has already determined an appeal on conviction and sentence.
- 2 Whether the Supreme Court decision in Francis Karioko Muruatetu & Another v Republic applies to sentences of life imprisonment for defilement under the Sexual Offences Act.
- 3 Whether the applicant is entitled to resentencing under Article 50(2)(p) of the Constitution.
Ratio Decidendi
The High Court held that it was functus officio, having already determined the applicant's appeal on both conviction and sentence. The court found that the Supreme Court's decision in Muruatetu, which declared the mandatory death sentence unconstitutional, did not apply to the applicant's case as he was sentenced to life imprisonment for defilement, not to death. Furthermore, the court noted that any application for resentencing after an appeal has been determined must be made to a higher court, specifically the Court of Appeal, unless there is evidence that the Court of Appeal has referred the matter back to the High Court. As such, the applicant's remedy lay in lodging an appeal to the...
Court Disposition
application dismissed
Orders
- The applicant's application filed on 31.7.2019 is dismissed.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYAAT MACHAKOS
MISCELLANEOUS CRIMINAL APPL. NO. 119 OF 2019
KIOKO BONIFACE MUTULI...........APPLICANT
VERSUS
REPUBLIC.......................................RESPONDENT
RULING ON RESENTENSING
1. Kioko Boniface Muli, the Applicant herein was charged with defilement contrary to section 8(1) as read with Section 8(2) of the sexual offences Act.
2. The Applicant pleaded not guilty and the case proceeded to full hearing. He was convicted and sentenced tolife imprisonment.
3. The Applicant was aggrieved by that decision of the trial court and filed an appeal to the High Court against both the conviction and sentence. The appeal was duly heard. A judgment was delivered on 25. 1.2016 and the appeal was dismissed. The judgment confirmed the conviction and sentence.
4. The Applicant did not appeal against the decision of the High Court and opted to file a new application before the High Court in which he seeks resentencing pursuant to the Supreme Court decision in Francis Karioko Muruatetu & Another v Republic & 5 Others [2017] eKLRdeclaring the mandatory death sentence unconstitutional. Article 50(2)(p) of the constitution provides that an accused person has a right to the benefit of the least severe of the prescribed punishments foran offence, if the prescribed punishment for the offence has beenchanged between the time that the offence was committed and thetime of sentencing. In S v. Ndlovu 2012 (1)ZLR 393the Zambian High Court observed that sentencing must utilize an engendered approach and a constitutional and human rights perspective and from the import of Article 50(2) (p)of the constitution, the applicant is not entitled to resentencing.
5. The cited case has necessitated resentencing of all persons previously sentenced to the mandatory death sentence and in the present case the applicant was not sentenced to death but to life imprisonment.
6. Further this is an inappropriate application as the court is functus officio having determined an appeal lodged by the applicant where the appeal on conviction and sentence were dismissed. Such an application can only be entertained by a higher Court – the Court of Appeal. The applicant’s appeal having been determined I find that the applicant’s remedy lies in lodging an appeal to the Court of Appeal. There is no evidence presented by the applicant to the effect that the Court of Appeal has referred him to this court for purposes of review of the sentence.
7. In the result it is my finding that the applicant’s application filed on 31. 7.2019 lacks merit. The same is ordered dismissed.
It is so ordered.
Dated and delivered at Machakos this 28thday ofApril 2020.
D.K.Kemei
Judge