[2022] KEHC 15728 (KLR)
The High Court lacks jurisdiction to reconsider or revise the applicant's sentence after his appeal was dismissed, as the Supreme Court has expressly limited the application of the Muruatetu decision to murder cases under sections 203 and 204 of the Penal Code. The applicant's reliance on constitutional provisions...
Source-derived case information.
- Citation
- [2022] KEHC 15728 (KLR)
- Parties
- Applicant: Mohamed Kalama Kiringi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Petition E048 of 2021
- Procedural Posture
- Constitutional Petition / Ruling on Petition for Resentencing
- Outcome
- petition dismissed
- Judges
- SM Githinji
- Legal Topics
- Incest Offence, Sexual Offences Act Sentencing, Jurisdiction of High Court, Application of Muruatetu, Constitutional Rights in Sentencing
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mohamed Kalama Kiringi
Applicant
Republic
Respondent
Procedural Posture
Constitutional Petition / Ruling on Petition for Resentencing
Legal Issues
- 1 Whether the High Court has jurisdiction to reconsider or revise the applicant's sentence after dismissal of his appeal.
- 2 Whether the Supreme Court's directions in Muruatetu apply to sentences under the Sexual Offences Act.
- 3 Whether time spent in remand should be deducted from the applicant's sentence.
Ratio Decidendi
The High Court lacks jurisdiction to reconsider or revise the applicant's sentence after his appeal was dismissed, as the Supreme Court has expressly limited the application of the Muruatetu decision to murder cases under sections 203 and 204 of the Penal Code. The applicant's reliance on constitutional provisions does not override the clear directions of the Supreme Court, and the court cannot deduct time spent in remand from the sentence in the absence of jurisdiction or specific legal provision. Consequently, the petition for resentencing lacks merit and is dismissed.
Court Disposition
petition dismissed
Orders
- The petition for resentencing is dismissed.
Full Case Text
Judgment text and source record
21 paragraphs
Kiringi v Republic (Petition E048 of 2021) [2022] KEHC 15728 (KLR) (29 November 2022) (Ruling)
Neutral citation: [2022] KEHC 15728 (KLR)
Republic of Kenya
In the High Court at Malindi
Petition E048 of 2021
SM Githinji, J
November 29, 2022
Between
Mohamed Kalama Kiringi
Applicant
and
Republic
Respondent
Ruling
1. The applicant was convicted of incest contrary to section 20(1) of the Sexual Offences Act and sentenced to serve ten (10) years imprisonment in Kilifi SRM Criminal Case No 121 of 2014. His appeal to this court was dismissed.
2. Undeterred and seemingly encouraged by the Court of Appeal’s interpretation of the decision in Francis Karioko Muruatetu –v- R [2017] eKLR whereby the decision was extended to sentences imposed under theSexual Offence Act (interpretation which has now been rescinded by the Supreme Court), the applicant filed a petition on August 25, 2021 to have his sentence revised.
3. The applicant states that he has not invoked this court’s appellate jurisdiction but jurisdiction under articles 19(3)(a) 20 (1 ), (2 ), 23 (1) (3 ) and 27(1 ) (2 ) (4 ) of the Constitution of Kenya, 2010. He urges this court to consider the 2 years spent in remand and deduct the same from the original sentence.
4. As earlier stated, the Supreme Court on July 6, 2021, did issue directions regarding the applicability and jurisdiction on resentencing in Muruatetu & another –v- Republic; Katiba Institute & 4 others(Amicus Curiae) (Petition 15 & 16 of 2015) [2021] KESC 31 (KLR) (6 July 2021) (Directions); that the Muruatetu decision [supra] only applied to those convicted in murder cases and not any other type of case or offence. The Supreme Court expressly stated inter alia: -'i.The decision of Muruatetu and these guidelines apply only in respect to sentences of murder under sections 203 and 204 of the Penal Code;'
5. In the circumstances, since the applicant had his appeal considered by this court, and a decision rendered, this court lacks jurisdiction to reconsider his plea for resentencing.
6. The upshot is that the petition lacks merit and is hereby dismissed.
DATED, SIGNED AND DELIVERED AT MALINDI THIS 29TH DAY OF NOVEMBER, 2022S.M.GITHINJIJUDGE29/11/2022In the Presence of the Applicant and Ms Mutua for the State.