[2024] KEHC 10725 (KLR)

Ngulu v Republic (Criminal Petition E026 of 2023) [2024] KEHC 10725 (KLR) (16 September 2024) (Judgment)

Neutral citation: [2024] KEHC 10725 (KLR)

Republic of Kenya

In the High Court at Machakos

Criminal Petition E026 of 2023

FROO Olel, J

September 16, 2024

Between

Kamusyi Ngulu

Applicant

and

Republic

Respondent

Judgment

A. Introduction 1. The applicant was charged and convicted of the offence of defilement contrary to section 8(1) as read with section 8(4) of the sexual offences Act No 3 of 2006 in Mutomo Criminal Case No 3 of 2013 and was sentenced to serve life imprisonment. The applicant being dissatisfied by the said judgment did appeal to the High court being Machakos Criminal Appeal No 92 OF 2013, which appeal was heard on merit and his appeal against conviction and sentence was dismissed .The applicant further filed his second Appeal at the court of Appeal being CA Criminal Appeal No 100 OF 2016, which appeal too was heard on merit and dismissed vide its judgement dated 24th July 2020.

2. The applicant did file this application/petition under provision of Article 22, 23, 27(1), (2), 52(2)(q), and 165 of the constitution of Kenya and seeks that this Honorable court be pleased to re consider the life sentence that he was serving and be pleased to resentence him to a lenient definite sentence, premised on rehabilitate sentence rather than retributive sentence . There had been new developments in the law regarding sentencing and he placed reliance in the case of Philip Mueke Maingi & Others Vrs Rep, Petititon No E17 OF 2021, & Mithu Vs State of Punjab criminal Appeal No 745 of 1980 where it had been held that mandatory sentences were unconstitutional as they infringed on the sentence discretion of the trial court.

B. Analysis of Law Nature and scope of resentencing 3. Re-sentencing is neither a hearing de novo nor an appeal. It is a proceeding undertaken within the court’s power to review sentence. The court will ordinarily check the legality, propriety or appropriateness of the sentence. The relevant considerations in the proceeding inter alia, are the penalty law, mitigating or aggravating factors, and the objects of punishments. In re-sentencing proceedings, conviction is not in issue.

4. It bears repeating that, the High Court has the mandate under Article 165 (3) of the Constitution to hear and determine matters on enforcement of rights and fundamental freedoms enshrined in the constitution A further leapfrog development; under article 50(2)(p) of the Constitution: 50(2) Every accused person has the right to a fair trial, which includes the right—(p)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.

5. The applicant has approached the court on the basis of the decisional law in Philip Mueke Maingi & Others Vrs Rep, Petition No E17 of 2021 & Wachira & 12 others Vrs Republic & 2 others (Petition 97, 88, 90 & 57 of 2021 (consolidated) {2022} KEHC 12795(KLR), which specifically outlawed mandatory minimum sentence. There is nothing which prevents the court from applying decisional law and ordering sentence review in cases where the penalty imposed was mandatory penalty in law even if the cases are finalized. To me, denying an accused the benefit of court’s discretion to impose appropriate sentence is inconsistent with the right to fair trial. Fair trial includes sentencing. On that basis this court has jurisdiction to determine and/or review sentence’s where appropriate. Also see Stephene Kimathi Mutunga -v- Republic (2019) eKLR & Michael Kathewa Laichena & Another -v- Republic (2018) eKLR where the same proposition was made.

C. Sentencing 6. Sentencing is a discretion of the court. But the court should look at the facts and the circumstances of the case in it’s entirely so as to arrive at appropriate sentence. I have perused the court file and specifically note that in CA Criminal Appeal No 100 of 2016, the appellant raised the issue of mandatory sentence being unlawful and urged the said court to so hold. The court did extensively canvass this issue and indeed found as an obiter, that mandatory sentence were unconstitutional as it deprives the court of their legitimate jurisdiction to exercise sentence discretion in appropriate cases. The said court further did hold that ; “Having said that, we however hasten to add that the court will uphold a sentence prescribed by the sexual offences Act if upon proper exercise of sentencing discretion and consideration of the facts of each case, such sentence is deserved or merited. This court expressed the same opinion in Dismas Wafula Kilwake & Another Vrs Republic.”

7. The said superior court further did find that after taking into consideration the facts of the applicants case and the inhuman and callous manner in which the applicant defiled the minor disregarding the fact that she was already unwell, the money motive that spurred the defilement and the serious nature of injuries suffered by the minor not only on her private parts but also on the rest of her body, the court was satisfied that there was no basis of interfering with the sentence imposed by the trial court and upheld by the first appellate court.

Determination 8. This court therefore holds that it has no jurisdiction to re-hear and determine the issue of resentencing as the same had been conclusively determined by the court of Appeal and is therefore res judicata.

9. The petition filed herein and dated 22nd February 2023 thus lacks merit and is dismissed.

10. It is so ordered.

JUDGEMENT WRITTEN, DATED AND SIGNED AT MACHAKOS THIS 16TH DAY OF SEPTEMBER, 2024. FRANCIS RAYOLA OLELJUDGEDELIVERED ON THE VIRTUAL PLATFORM, TEAMS THIS 16TH DAY OF SEPTEMBER, 2024. In the presence of;Applicant present from Kamiti PrisonMr. Mongare/Ms Otulu for RespondentSusan/Sam Court Assistant