[2023] KEHC 2599 (KLR)
The court held that, although the original sentence was proportionate to the offence, it was imposed at a time when mandatory minimum sentences were not subject to judicial discretion. In light of the applicant's demonstrated rehabilitation, good conduct, and the significant period already served (almost 16 years),...
Source-derived case information.
- Citation
- [2023] KEHC 2599 (KLR)
- Parties
- Applicant: John Kurgat; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kabarnet
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E001 of 2022
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Re Sentencing
- Outcome
- sentence varied; applicant released from custody and placed on probation
- Judges
- HK Chemitei
- Legal Topics
- Defilement Sentencing, Incest Sentencing, Resentencing Jurisprudence, Mandatory Minimum Sentences, Rehabilitation in Sentencing
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Kurgat
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Application for Re Sentencing
Legal Issues
- 1 Whether the applicant is entitled to re-sentencing following the Supreme Court's decision in Muruatetu regarding mandatory minimum sentences.
- 2 Whether the period already served and evidence of rehabilitation justify a reduction or variation of the original sentence.
Ratio Decidendi
The court held that, although the original sentence was proportionate to the offence, it was imposed at a time when mandatory minimum sentences were not subject to judicial discretion. In light of the applicant's demonstrated rehabilitation, good conduct, and the significant period already served (almost 16 years), the court found it appropriate to vary the sentence. The court emphasized the importance of giving reformed offenders a second chance, especially considering the applicant's age and the recommendations from prison authorities. Accordingly, the sentence was varied, and the applicant was released from custody and placed under a three-year probation period.
Court Disposition
sentence varied; applicant released from custody and placed on probation
Orders
- The sentence of thirty (30) years is hereby varied.
- The applicant is set free unless lawfully held for another reason.
Full Case Text
Judgment text and source record
26 paragraphs
Kurgat v Republic (Miscellaneous Criminal Application E001 of 2022) [2023] KEHC 2599 (KLR) (30 March 2023) (Ruling)
Neutral citation: [2023] KEHC 2599 (KLR)
Republic of Kenya
In the High Court at Kabarnet
Miscellaneous Criminal Application E001 of 2022
HK Chemitei, J
March 30, 2023
Between
John Kurgat
Applicant
and
Republic
Respondent
Ruling
1. The applicant was convicted for the offence of defilement and or incest and sentence to serve 30 years’ imprisonment. His appeal to this court and the court of appeal were dismissed. He has been in custody since September 2007.
2. In his application for re-sentencing pursuant to the window of opportunity granted vide the famous Muruatetu judgement from the Supreme Court of Kenya, and the other several decisions by this court and the Court of Appeal regarding mandatory sentences, the applicant has sought to try his luck. It is his luck because the issue of sentencing is discretional and the sections of the law that convicted the applicant are still intact within our statutes.
3. The applicant submitted that he has since reformed and has undergone various trade tests while in prison as per testimonials in his affidavit. He said that he was remorseful and he prays for a second chance in his life.
4. The applicant attached a copy of the letter from the officer in charge of Eldoret prison showing that he has been of good conduct and has trained in paint work and decoration among others. In short he had undergone rehabilitation.
5. The learned state counsel opposed the application arguing that the trial court had handed the right punishment to the applicant and therefore he ought to serve the same to the fullest. He said that the court ought to take into account the circumstances of the matter and the relationship between the applicant and the complainant.
6. Having heard the parties and going through the submissions it is evidently clear that the applicant’s door was closed when the Court of Appeal dismissed his appeal. The only opportunity is now.
7. It is also true that the sentence meted against him was commensurate to the offence. Nonetheless the same was mandatory and by that time the current jurisprudence had not been developed. It is thus in order for the applicant to have filed this application.
8. In Daniel Kipkosgei LettingvRepublic [2021] eKLR this court pronounced itself as follows; “With regard to the above, we observe that the purpose and objectives of sentencing as stated in the Judiciary Sentencing policy should be Page 12 of 19 commensurate and proportionate to the crime committed and the manner in which it was committed. The sentencing should be one that meets the end of justice and ensures that the principles of proportionality, deterrence and rehabilitation are adhered to. In this regard we think that the complaint that the sentence imposed was harsh and excessive is valid though it was the only sentence available then. We are therefore inclined to interfere with it. We therefore set aside the sentence of life imprisonment imposed on the appellant. Having considered the mitigation proffered by the appellant on record the sentence that commends to us is 25 years imprisonment.”
9. Consequently, it is the believe of this court that the almost 16 years the applicant has been in custody has taught him a lifelong lesson. That period is not that short and probably he must or should have reformed. The evidence of what he has been doing while in custody and the recommendation from the prison authorities cannot be wished away.
10. In essence this court is of the consideration that he ought to be granted a second chance to make amends in his life noting that the applicant born in 1962 was now 61 years old or thereabouts.
11. In the premises, the sentence of Thirty (30) years is hereby varied and the appellant is set free unless lawfully held and placed under a Three (3) years’ probation period at the relevant probation office from the date herein.
DATED SIGNED AND DELIVERED VIA VIDEO LINK AT NAKURU THIS 30THDAY OF MARCH 2023. H. K. CHEMITEI.JUDGE