[2022] KEHC 16763 (KLR)
The court found that the petitioner’s sentence had already been reviewed and reduced to 10 years for both counts to run concurrently, after considering the Supreme Court’s guidance in Muruatetu and the relevant mitigating factors, including the petitioner’s health and age. There was no new basis or exceptional...
Source-derived case information.
- Citation
- [2022] KEHC 16763 (KLR)
- Parties
- Applicant: Rashid Wanyama Omar; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Criminal Petition E014 of 2022
- Procedural Posture
- Criminal Petition / Ruling on Application for Noncustodial Sentence and Sentence Review
- Outcome
- petition dismissed
- Judges
- RN Nyakundi
- Legal Topics
- Sentencing Review, Defilement Offence, Sexual Assault, Mandatory Minimum Sentences
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rashid Wanyama Omar
Applicant
Republic
Respondent
Procedural Posture
Criminal Petition / Ruling on Application for Noncustodial Sentence and Sentence Review
Legal Issues
- 1 Whether the petitioner is entitled to a further reduction of sentence or a noncustodial sentence under section 39(2) of the Sexual Offences Act.
- 2 Whether the minimum mandatory sentence imposed was unjust or unfair in light of recent jurisprudence.
- 3 Whether the petitioner’s health and age constitute sufficient mitigating factors for further sentence reduction.
Ratio Decidendi
The court found that the petitioner’s sentence had already been reviewed and reduced to 10 years for both counts to run concurrently, after considering the Supreme Court’s guidance in Muruatetu and the relevant mitigating factors, including the petitioner’s health and age. There was no new basis or exceptional circumstance presented to warrant a further reduction or the grant of a noncustodial sentence. The jurisprudence in Maingi & 5 others v DPP had already been applied in the previous review. Therefore, the petition was unmerited and dismissed.
Court Disposition
petition dismissed
Orders
- The petition for further sentence reduction or noncustodial sentence is dismissed.
Full Case Text
Judgment text and source record
22 paragraphs
Omar v Republic (Criminal Petition E014 of 2022) [2022] KEHC 16763 (KLR) (23 December 2022) (Ruling)
Neutral citation: [2022] KEHC 16763 (KLR)
Republic of Kenya
In the High Court at Eldoret
Criminal Petition E014 of 2022
RN Nyakundi, J
December 23, 2022
Between
Rashid Wanyama Omar
Petitioner
and
Republic
Respondent
Ruling
1. The applicant approached this court vide a Notice of Motion filed on August 17, 2022 seeking the following orders;1. Spent2. That the Petitioner be granted a noncustodial sentence in accordance to section 39(2) of theSOA No 3 of 2006. 3.That the Petitioners’ health condition is further worsen due to hard time in prison in respect to his ageing and underlying health conditions.
2. The minimum mandatory sentence against the Petitioner was unjust and unfair based on the High Court decision by Hon. Justice GV Odunga vide Petition No E017/2021 at Machakos High Court on May 17, 2022.
3. The application is premised on the grounds set out therein and the contents of the supporting affidavit to the application.
4. The Petitioner was convicted of the offence of defilement contrary to section 8(l)(3)of the SOAin Count I and Sexual Assault contrary to section 5(l)(a)(i) and (2) of the SOA in count II. He was sentenced to serve 20 year’s imprisonment for count one and 10 years’ imprisonment for count two. The High court reduced the Petitioners’ sentences for both counts to 10 years to run concurrently on December 9, 2021.
5. I have perused the judgment of December 9, 2021 where the court applied the findings of the Supreme Court in Muruatetu 1 and reached the conclusion that the Petitioner was entitled to a review of the sentence based on the circumstances of the case and any mitigating factors. The upshot of the foregoing is that there is no further reason to reduce the Petitioner’s sentence as the same was already determined.
6. Whereas I note the jurisprudence arising fromMaingi & 5 others v Director of Public Prosecutions & another(Petition E017 of 2021) [2022] KEHC 13118 (KLR), the same requires that the court interrogate the mitigating circumstances around the conviction and sentencing of the Petitioner, which was already done by this court as per the judgment reducing his sentence to 10 years.
7. In the premises, the petition is unmerited and is hereby dismissed.Orders accordingly.
DATED, SIGNED AND DELIVERED VIA EMAIL ELDORET THIS 23TH DAY OF DECEMBER, 2022. ...........................R. NYAKUNDIJUDGE(mark.mugun@gmail.com)