[2023] KEHC 2785 (KLR)
The court held that the applicant's petition for resentencing was not supported by any material evidence, such as the proceedings and judgments from the lower court and the appeal, or any testimonial from prison regarding rehabilitation. Without these, the court could not consider the petition on its merits. The...
Source-derived case information.
- Citation
- [2023] KEHC 2785 (KLR)
- Parties
- Applicant: Michael Onyango Ojuok; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Petition E030 of 2022
- Procedural Posture
- Criminal Petition / Ruling on Petition for Resentencing
- Outcome
- petition dismissed
- Judges
- RE Aburili
- Legal Topics
- Defilement Offence, Mandatory Sentencing, Resentencing Petition, Criminal Procedure, Sentence Revision
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Michael Onyango Ojuok
Applicant
Republic
Respondent
Procedural Posture
Criminal Petition / Ruling on Petition for Resentencing
Legal Issues
- 1 Whether the petition for resentencing is competent without supporting documents or records from the lower court and appeal.
- 2 Whether the minimum mandatory sentence for sexual offences is unconstitutional as claimed by the applicant.
Ratio Decidendi
The court held that the applicant's petition for resentencing was not supported by any material evidence, such as the proceedings and judgments from the lower court and the appeal, or any testimonial from prison regarding rehabilitation. Without these, the court could not consider the petition on its merits. The court emphasized that it is incumbent upon a petitioner seeking resentencing to provide all relevant supporting documents to enable a fair and informed determination. The absence of such documentation rendered the petition incompetent and unmeritorious, leading to its dismissal. The court clarified that the applicant is at liberty to file a fresh petition with all necessary...
Court Disposition
petition dismissed
Orders
- The petition for resentencing is dismissed.
- The file is closed.
Full Case Text
Judgment text and source record
26 paragraphs
Ojuok v Republic (Petition E030 of 2022) [2023] KEHC 2785 (KLR) (24 March 2023) (Ruling)
Neutral citation: [2023] KEHC 2785 (KLR)
Republic of Kenya
In the High Court at Kisumu
Petition E030 of 2022
RE Aburili, J
March 24, 2023
Between
Michael Onyango Ojuok
Applicant
and
Republic
Respondent
(From original conviction and sentence in Sexual Offences No 1005 of 2015 in the Senior Resident Magistrate’s Court at Maseno)
Ruling
1. This Criminal petition was filed on October 5, 2022. The Applicant in his Notice of Motion dated August 12, 2022 claims that he was convicted vide Maseno Senior Resident Magistrate’s court Sexual Offences Case No 1005 of 2015 for the offence of defilement contrary to Section 8(1) as read with Section 8(4) of the Sexual Offences Act and sentenced to serve fifteen (15) years Imprisonment.
2. That he appealed to the High Court vide HCCRA No 30 of 2015 at Kisumu which appeal was dismissed and that he never appealed further to the Court of Appeal.
3. He now wants this court to revise his sentence through a resentencing claiming that the minimum mandatory sentence in sexual offences is unconstitutional as pronounced by Odunga J on May 17, 2022.
4. He further prays that this court allows him to mitigate under Section 216 and 329 of the Criminal Procedure Code and considers Section 333(2) of the Criminal Procedure Code for the benefit of the law and interest of justice.
5. This being a petition for resentencing, and the convict having had the opportunity to be heard on appeal, it was incumbent upon him to file before this court proceedings and judgement of the lower court and appeal as the court on appeal to the High Court prepares and served upon convict appellants a complete record of appeal.
6. The petitioner has filed a bare or barren petition without any supporting material for this court to consider. Not even any testimonial from prison is filed to inform this court the extent to which the Petitioner has been rehabilitated or reformed.
7. I find this petition not supported at all for consideration on merit. The same is dismissed.
8. The convict can still file another petition with all supporting documents for consideration by this court on merit.
9. This file is now closed. Convict to be notified via prison email.
10. Signal to be extracted and Ruling typed forthwith.
DATED, SIGNED AND DELIVERED AT KISUMU THIS 24THDAY OF MARCH, 2023R. E. ABURILIJUDGE