[2023] KEHC 20078 (KLR)
The court held that it had no jurisdiction to entertain the application for revision of sentence because the applicant's conviction and sentence for defilement had already been challenged and dismissed on appeal and through a previous revision application. The court further found that the Francis Karioko Muruatetu...
Source-derived case information.
- Citation
- [2023] KEHC 20078 (KLR)
- Parties
- Applicant: Vincent Mukotsi Mukhomba; Respondent: ODPP
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision E050 of 2021
- Procedural Posture
- Criminal Revision / Ruling on Jurisdictional Competence of Application
- Outcome
- Application struck out for lack of jurisdiction.
- Judges
- PJO Otieno
- Legal Topics
- Defilement Offence, Sentencing Review, Jurisdiction of High Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Vincent Mukotsi Mukhomba
Applicant
ODPP
Respondent
Procedural Posture
Criminal Revision / Ruling on Jurisdictional Competence of Application
Legal Issues
- 1 Whether the High Court has jurisdiction to review the applicant's sentence for defilement after prior appeals and a previous revision application were dismissed.
- 2 Whether the Francis Karioko Muruatetu decision applies to sentences for defilement under the Sexual Offences Act.
Ratio Decidendi
The court held that it had no jurisdiction to entertain the application for revision of sentence because the applicant's conviction and sentence for defilement had already been challenged and dismissed on appeal and through a previous revision application. The court further found that the Francis Karioko Muruatetu decision, which concerns the mandatory nature of the death penalty for murder, does not apply to defilement offences under the Sexual Offences Act. As there was no change in law or facts since the previous ruling, the application was struck out for want of jurisdiction.
Court Disposition
Application struck out for lack of jurisdiction.
Orders
- The application is struck out on account of lack of jurisdiction.
- The court file shall be closed.
Full Case Text
Judgment text and source record
20 paragraphs
Mukhomba v ODPP (Criminal Revision E050 of 2021) [2023] KEHC 20078 (KLR) (7 July 2023) (Ruling)
Neutral citation: [2023] KEHC 20078 (KLR)
Republic of Kenya
In the High Court at Kakamega
Criminal Revision E050 of 2021
PJO Otieno, J
July 7, 2023
Between
Vincent Mukotsi Mukhomba
Applicant
and
Odpp
Respondent
(Application was heard and determined by Musyoka, J. and dismissed on the November 12, 2021 Criminal Revision 8 of 2020 )
Ruling
1. The application filed in Court on August 9, 2021 and the Affidavit sworn in support thereof show that the decision sought to be challenged by revision was challenged in the High Court in Criminal Appeal No 3 of 2015 and in Court of Appeal in Criminal Appeal No 242 of 2011. Both were dismissed for want of merits. After the two Appeals were determined, the Applicant approached the High Court, again in Kakamega High Court Criminal Revision No 8 of 2020, seeking review of sentence. That application was heard and determined by Musyoka, J. and dismissed on the November 12, 2021.
2. In dismissing the matter the Judge rendered himself as follows:-“…The offence, the subject of the instant proceedings, is not murder, but defilement, as defined in section 8(1)(3) of the Sexual Offences Act, the decision in Francis Karioko Muruatetu & another v Republic [2017] eKLR (Maraga CJ & P, Mwilu DCJ & VP, Ojwang, Wanjala, Njoki and Lenaola SCJJ), therefore, does not apply to it. As a consequence, the High Court has no jurisdiction to review the sentence that was imposed by the trial court, based on the decision in Francis Karioko Muruatetu & another v Republic; Katiba Institute & 5 others (Amicus Curiae [2021] (Koome CJ & P, Mwilu DCJ & VP, Ibrahim, Wanjala, Ndung’u & Lenala SCJJ). In any case, the issues raised with regard to sentence could and should have been raised within the appeals for consideration by the appellate courts. Since there is no jurisdiction on my part to entertain the application, I shall strike it out, for it is incompetent. The said file shall be closed…”
3. Neither the facts nor law has changed since the Ruling by Musyoka J to give to this Court the jurisdiction to entertain the current application. The application is thus struck out on account of lack of jurisdiction.
4. Let the Court file be closed and this decision disseminated to the prosecution and the Applicant.
DATED, SIGNED AND DELIVERED AT KAKAMEGA THIS 7TH DAY OF JULY 2023. PATRICK J. O. OTIENOJUDGE