[2022] KEHC 13842 (KLR)
The court found that the applicant had already benefited from resentencing following the principles established in Francis Muruatetu and Jared Koita Injiri. The court had exercised its judicial discretion to reduce the sentence from life imprisonment to 30 years, calculated from the date of the original sentence....
Source-derived case information.
- Citation
- [2022] KEHC 13842 (KLR)
- Parties
- Applicant: David Toet Migesha; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E083 of 2022
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Resentencing After Conviction and Sentence Appeal
- Outcome
- application dismissed
- Judges
- RE Aburili
- Legal Topics
- Defilement, Sexual Offences Act, Resentencing, Mandatory Minimum Sentences, Judicial Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
David Toet Migesha
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Application for Resentencing After Conviction and Sentence Appeal
Legal Issues
- 1 Whether the applicant is entitled to resentencing after the High Court had already exercised judicial discretion and resentenced him.
- 2 Whether the sentence imposed was unconstitutional due to the minimum mandatory sentence provisions.
Ratio Decidendi
The court found that the applicant had already benefited from resentencing following the principles established in Francis Muruatetu and Jared Koita Injiri. The court had exercised its judicial discretion to reduce the sentence from life imprisonment to 30 years, calculated from the date of the original sentence. There was no new legal basis or constitutional issue raised that would justify revisiting the sentence. Therefore, the application for further resentencing was dismissed as lacking merit.
Court Disposition
application dismissed
Orders
- The application dated 8/7/2022 is dismissed.
- The applicant to serve the sentence of 30 years imprisonment as previously imposed.
Full Case Text
Judgment text and source record
23 paragraphs
Migesha v Republic (Miscellaneous Criminal Application E083 of 2022) [2022] KEHC 13842 (KLR) (5 October 2022) (Ruling)
Neutral citation: [2022] KEHC 13842 (KLR)
Republic of Kenya
In the High Court at Siaya
Miscellaneous Criminal Application E083 of 2022
RE Aburili, J
October 5, 2022
Between
David Toet Migesha
Applicant
and
Republic
Respondent
(Being an Application against conviction and sentence in the Principal Magistrate’s Court at Bondo in Sexual Offence Case No.1072 of 2016 by Hon. E.N. Wasike, Senior Resident Magistrate on 19/5/2017 AND in Siaya HCRA No. 53 of 2016 on 12/6/2019)
Ruling
1. The applicant David Toet Migesha was convicted of the offence of defilement contrary to section 8 (1) and 8 (2) of the Sexual Offences Act by Hon. E.N Wasike Senior Resident Magistrate in Bondo PM SO 1072/2016 on May 19, 2017. He was sentenced to serve life imprisonment.
2. He appealed to this court vide HCRA 53/2016 and this court delivered judgment on 12/6/2019 dismissing his appeal against conviction but allowed the appeal against sentence, applying the principles espoused in Francis Muruatetu &anothervsRepublic [2017] eKLR case as applied in Jared Koita InjirivsRepublic [2019] e KLR among others. I resentenced the appellant to serve 30 years imprisonment to be calculated from the date of sentencing in the lower court. He has sat on that lenient term sentence for a while and has returned to this court seeking for resentencing on the grounds that he was handed an unconstitutional Minimum Mandatory Sentence. Further that he is reformed.
3. I have considered the application for resentencing.
4. I find no merit in it as the court already resentenced the applicant. That was in exercise of judicial discretion which this court cannot revisit.
5. I decline the application dated 8/7/2022 and dismiss it. The applicant to serve the lenient sentence re-imposed on him for the heinous offence committed.
6. I so order.
7. File closed.
DATED, SIGNED AND DELIVERED AT SIAYA THIS 5TH DAY OF OCTOBER, 2022R.E. ABURILIJUDGE