[2020] KEHC 8945 (KLR)
The court held that the applicant was not sentenced to the mandatory death penalty but to life imprisonment, and therefore the Supreme Court decision in Muruatetu does not apply to his case. Additionally, the High Court, having already determined the applicant's appeal against conviction and sentence, is functus...
Source-derived case information.
- Citation
- [2020] KEHC 8945 (KLR)
- Parties
- Applicant: Mutua Muli Kilonzi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 133 of 2019
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Resentencing
- Outcome
- application dismissed
- Judges
- BC Koech
- Legal Topics
- Defilement, Sentencing Principles, Resentencing Applications, Mandatory Sentences, Jurisdiction, Constitutional Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mutua Muli Kilonzi
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Resentencing
Legal Issues
- 1 Whether the applicant is entitled to resentencing following the Supreme Court decision declaring the mandatory death sentence unconstitutional.
- 2 Whether the High Court has jurisdiction to entertain the resentencing application after having already determined the appeal.
Ratio Decidendi
The court held that the applicant was not sentenced to the mandatory death penalty but to life imprisonment, and therefore the Supreme Court decision in Muruatetu does not apply to his case. Additionally, the High Court, having already determined the applicant's appeal against conviction and sentence, is functus officio and lacks jurisdiction to entertain a resentencing application. Such an application can only be entertained by a higher court, specifically the Court of Appeal. Consequently, the application for resentencing lacks merit and is dismissed.
Court Disposition
application dismissed
Orders
- The application for resentencing is dismissed.
- No resentencing shall be conducted by this court.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MACHAKOS
MISCELLANEOUS CRIMINAL APPL. NO. 133 OF 2019
MUTUA MULI KILONZI...................................................APPLICANT
VERSUS
REPUBLIC........................................................................RESPONDENT
RULING ON RESENTENCING
1. Mutua Muli Kilonzi, the Applicant herein was charged with defilement contrary to section 8(1) as read with Section 8(2) of the sexual offences Act.
2. The Applicant pleaded not guilty and the case proceeded to full hearing. He was convicted of the count with which he had been charged and the trial Court sentenced him to serve life imprisonment.
3. The Applicant was aggrieved by that decision of the trial court and filed an appeal to the High Court against both the conviction and sentence. The appeal was duly heard. A judgment was delivered on 19. 2.2014 where the appeal was dismissed. The judgment confirmed the conviction and sentence.
4. The Applicant did not appeal against the decision of the High Court and opted to file a new application before the High Court in which he seeks resentencing pursuant to the Supreme Court decision in Francis Karioko Muruatetu & Another v Republic & 5 Others [2016] eKLRdeclaring the mandatory death sentence unconstitutional. Article 50(2)(p) of the constitution provides that an accused person has a right to the benefit of the least severe of the prescribed punishments for an offence, if the prescribed punishment for the offence has been changed between the time that the offence was committed and the time of sentencing. In S v. Ndlovu 2012 (1) ZLR 393 the Zambian High Court observed that sentencing must utilize an engendered approach and a constitutional and human rights perspective and from the import of Article 50(2) (p) of the constitution, the applicant is not entitled to resentencing.
5. The cited case has necessitated resentencing of all persons previously sentenced to the mandatory death sentence and the applicant was not sentenced to death but to life imprisonment.
6. Further as pointed out by the state, this is an inappropriate application as the court is functus officio. Such an application can only be entertained by a higher Court – the Court of Appeal. This application lacks merit and is dismissed.
It is so ordered.
Dated and delivered at Machakos this 27th day of January,2020.
D. K. Kemei
Judge