[2021] KEHC 8448 (KLR)
The court found that the petitioner's sentence had already been considered and upheld by both the High Court and the Court of Appeal, including after the Francis Muruatetu decision. There was no new evidence or legal basis presented to justify a review of the sentence. The minimum sentence imposed was lawful at the...
Source-derived case information.
- Citation
- [2021] KEHC 8448 (KLR)
- Parties
- Petitioner: Lucas Masa Hura; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Petition 5 of 2020
- Procedural Posture
- Constitutional Petition / Ruling on Application for Review of Sentence
- Outcome
- application dismissed
- Judges
- REA Ougo
- Legal Topics
- Right to Fair Trial, Review of Sentence, Minimum Sentencing, Defilement Offences
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Lucas Masa Hura
Petitioner
Republic
Respondent
Procedural Posture
Constitutional Petition / Ruling on Application for Review of Sentence
Legal Issues
- 1 Whether the High Court has jurisdiction to review a sentence already upheld by the Court of Appeal.
- 2 Whether the petitioner is entitled to a non-custodial sentence or sentence reduction based on alleged change of character and health grounds.
- 3 Whether the sentence imposed was harsh, excessive, or unconstitutional in light of current legal standards.
Ratio Decidendi
The court found that the petitioner's sentence had already been considered and upheld by both the High Court and the Court of Appeal, including after the Francis Muruatetu decision. There was no new evidence or legal basis presented to justify a review of the sentence. The minimum sentence imposed was lawful at the time of conviction, and the petitioner's claims of ill health were unsupported by evidence. The court held that it would be improper to re-examine a sentence already affirmed by the Court of Appeal, and thus found no merit in the application for review or reduction of sentence.
Court Disposition
application dismissed
Orders
- The application for review of sentence is dismissed.
- The applicant/petitioner shall continue serving the sentence imposed.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISII
PETITION NO.5 OF 2020
ARISING FROM CRIMINAL CASE NO.329 OF 2014-RONGO
HIGH COURT CRIMINAL CASE NO.6 OF 2015 –MIGORI
COURT OF APPEAL CASE NO.74 OF 2017 –KISUMU
LUCAS MASA HURA...........................PETITIONER
-VERSUS
REPUBLIC.........................................RESPONDENT
IN THE MATTER OF ARTICLE 22(B) 21 (1) 20 (1) (4) OF THE CONSTITUTION OF KENYA 2010
AND ALL OTHER ENABLING PROVISION OF THE LAW.
AND
IN THE MATTER OF CONTRAVENTION OF FUNDAMENTAL RIGHT AND FREEDOM OF INDIVIDUAL
UNDER ARTICLE 25(A) 26(1) (2) (3), 28, 28(a) (d) (f) 47, (1) (2) 48 and article 50 (2) (h) (p) OF THE
CONSTITUTION OF KENYA AND ARTICLE 23(1) AS READ WITH ARTICLE 165 (B) OF
THE CONSTITUTION AND
IN THE MATTER OF SECTION 8 (3) OF THE SEXAUL OFFENCE
AND
IN THE MATTER OF SECTION 345 (III) OF THE CPC LAWS OF KENYA
RULING
I have considered the application dated 6/3/2020. As per the petitioner’s affidavit dated 6/3/2020 he is serving 15 years for the offence of defilement. He has served 7 years. In his Notice of Motion the affidavit seeks that the court exercises its power of reviews and grant the applicant a non-custodial sentence so as to finish the remainder of his sentence on probation and or pay an alternative.
In his supporting affidavit the applicant claims that he has gone through a lot and that he has changed in terms of behavior. He claims that the terms of 15 years is harsh that he is a sickling and that if released he will seek proper medical care out of prisons.
Mr. Otieno for the Respondent submitted that the applicant/petitioner was jailed for 15 years after defiling a child of 16 years. That the 15 years was the minimum sentence and that he leaves it to court to relook the sentence depending on the current law.
In a judgment dated 14/3/2017 Justice Mrima upheld the conviction and sentence by the trial court in SRM Criminal Case No.329 of 2014. It is correct that at that time the petitioner was sentenced in 2015 the minimum sentence was 15 years. In June 2019 the appellant’s conviction was upheld by the court his appeal was dismissed. The petitioner/applicant is back seeking a review of his sentence. This matter has been before the High Court at Migori and Court of Appeal Kisumu. The Court of Appeal decision was given after the Francis Muruwatetu decision in 2017. The Court of Appeal considered all aspects of facts, law and sentence. To now seek a review of the sentence would be asking me to relook the Court of Appeal decision. The Court of Appeal did not set aside the said sentence. In my view it was a fair sentence and I therefore find no merit in this application.
Lastly there is nothing to support the averment that the applicant/petitioner is a sickling. All in all I find no merit in the application and it is dismissed. The applicant/petitioner shall continue serving the sentence imposed.
DATED, SIGNED AND DELIVERED AT KISII THIS 25THDAY OF FEBRUARY, 2021.
R.E. OUGO
JUDGE
In the presence of;
Applicant In person -Present
Mr. Otieno Senior State Counsel Office of the DPP
Ms. Rael Court Assistant