[2019] KEHC 6691 (KLR)
The court held that the petitioner, having been sentenced to life imprisonment and not to the mandatory death sentence, does not fall within the category of persons eligible for resentencing as contemplated by the Supreme Court in the Muruatetu decision. The Muruatetu case specifically addressed the...
Source-derived case information.
- Citation
- [2019] KEHC 6691 (KLR)
- Parties
- Appellant: Mathews Gwako Ongere; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Petition 16 of 2019
- Procedural Posture
- Constitutional Petition / Judgment
- Outcome
- petition dismissed
- Judges
- TW Cherere
- Legal Topics
- Defilement, Incest, Sentencing Principles, Sexual Offences Act, Resentencing, Mandatory Sentences
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mathews Gwako Ongere
Appellant
Republic
Respondent
Procedural Posture
Constitutional Petition / Judgment
Legal Issues
- 1 Whether the petitioner qualifies for resentencing following the Supreme Court decision in Francis Karioki Muruatetu & Another v Republic & 5 Others [2016] eKLR.
- 2 Whether the life sentence imposed on the petitioner is unconstitutional or subject to review.
Ratio Decidendi
The court held that the petitioner, having been sentenced to life imprisonment and not to the mandatory death sentence, does not fall within the category of persons eligible for resentencing as contemplated by the Supreme Court in the Muruatetu decision. The Muruatetu case specifically addressed the unconstitutionality of the mandatory death sentence and the need for resentencing only for those affected by such sentences. Since the petitioner was not sentenced to death, the court found no merit in the petition for resentencing and dismissed it accordingly.
Court Disposition
petition dismissed
Orders
- The petition for resentencing filed on 6th March, 2019 is dismissed.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISUMU
PETITION NO.16 OF 2019
(CORAM: CHERERE- J.)
BETWEEN
MATHEWS GWAKO ONGERE............PETITIONER
AND
REPUBLIC...........................................RESPONDENT
JUDGMENT
Introduction
1. MATHEWS GWAKO ONGERE, (hereinafter referred to as the petitioner) was charged with the offence of defilement contrary to Section 8(1) (3) and incest contrary to Section (20) (1) of the Sexual Offences Act No. 3 of 2006. He was convicted and sentenced to 20 years and life imprisonment respectively with the sentence of 20 years being subsumed in the life sentence.
2. By a petition filed on 6th March, 2019, the petitioner has petitioned this court for resentencing.
3. Mr. Muia, learned counsel for the state opposed the petition on the ground that the Petitioner does not qualify for resentence.
Analysis and Determination
4. The Supreme Court decision in Francis Karioki Muruatetu & Another v Republic & 5 Others [2016] eKLR declaring the mandatory death sentence unconstitutional has necessitated resentencing of all persons previously sentenced to the mandatory death sentence.
5. The Petitioner was not sentenced to death but to life imprisonment. As was rightfully submitted by the Mr. Muia for the state, the Petitioner does not qualify for resentence.
6. Consequently, the Petition filed on 6th March, 2019 is considered and found to have no merit and it is dismissed.
DATED AND SIGNED IN KISUMU THIS16th DAY OF May 2019
T. W. CHERERE
JUDGE
Read in open court in the presence of-
Court Assistant- Felix
Petitioner- Present in person
For the State- Ms Gatho