[2024] KEHC 2228 (KLR)
The court held that it lacked jurisdiction to rehear and resentence the applicant because the appellate process had already been concluded, with the High Court having upheld both conviction and sentence. The court found that the applicant had not presented any new and compelling evidence to justify reopening the...
Source-derived case information.
- Citation
- [2024] KEHC 2228 (KLR)
- Parties
- Applicant: William Ochieng Otieno; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kericho
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E003 of 2022
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Rehearing and Resentencing
- Outcome
- application dismissed for want of jurisdiction
- Judges
- JK Sergon
- Legal Topics
- Defilement Offence, Mandatory Minimum Sentences, Resentencing Jurisdiction, Constitutional Rights, Appellate Review
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
William Ochieng Otieno
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Application for Rehearing and Resentencing
Legal Issues
- 1 Whether the High Court has jurisdiction to rehear and resentence the applicant after the appeal was determined and sentence upheld.
- 2 Whether the declaration of unconstitutionality of mandatory minimum sentences under the Sexual Offences Act applies retrospectively to the applicant's case.
- 3 Whether there is new and compelling evidence to warrant review of sentence.
Ratio Decidendi
The court held that it lacked jurisdiction to rehear and resentence the applicant because the appellate process had already been concluded, with the High Court having upheld both conviction and sentence. The court found that the applicant had not presented any new and compelling evidence to justify reopening the matter. Furthermore, the declaration of unconstitutionality of mandatory minimum sentences under the Sexual Offences Act did not, in itself, invalidate the sentence imposed on the applicant, especially since the trial court had considered mitigating factors. Therefore, the application for rehearing and resentencing was dismissed for want of jurisdiction.
Court Disposition
application dismissed for want of jurisdiction
Orders
- The petition for rehearing and resentencing is dismissed for want of jurisdiction.
Full Case Text
Judgment text and source record
22 paragraphs
Otieno v Republic (Miscellaneous Criminal Application E003 of 2022) [2024] KEHC 2228 (KLR) (29 February 2024) (Ruling)
Neutral citation: [2024] KEHC 2228 (KLR)
Republic of Kenya
In the High Court at Kericho
Miscellaneous Criminal Application E003 of 2022
JK Sergon, J
February 29, 2024
Between
William Ochieng Otieno
Applicant
and
Republic
Respondent
Ruling
1. The Applicant was convicted and sentenced to fifteen (15) years imprisonment for the offence of defilement contrary to section 8 (1) as read with section 8 (2) of the Sexual Offences Act No 3 of 2006 by Hon. S. Mokua vide Criminal Case SO No 83 of 2016.
2. The Applicant being dissatisfied with the conviction to the mandatory minimum prescribed sentence, appealed to the High Court vide Kericho High Court Criminal Appeal No 10 of 2019, whereby Justice Dulu upheld both sentence and conviction.
3. The Applicant has now filed the instant application seeking for rehearing and resentencing in light of the recent decision by Odunga J. (as he the was) in Maingi & 5 others v Director of Public Prosecutions & another (Petition E017 of 2021) [2022] KEHC 13118 (KLR) (17 May 2022) (Judgment) where the court declared that the mandatory minimum sentences under the Sexual Offences Act are unconstitutional.
4. The prosecution opposed the application and submitted that the petition herein was premature and further that the applicant ought to have appealed on the grounds that the sentence meted out by the trial court was harsh.
5. The following legal provisions empower this court to entertain resentencing applications; Article 165 of the Constitution which clothes the High Court with jurisdiction to hear and determine applications for redress for a denial, violation or infringement of or threat to, a right or fundamental freedom in the bill of rights as well as Article 50 (2) (p) (q) as read with Article 50 (6) (a) and (b) of the Constitution.
6. It is clear from the instant petition that the applicant invoked this court’s appellate jurisdiction, this court heard and determined the appeal and subsequently upheld the conviction and sentence of the trial court. The record of the trial Court clearly indicates that the mitigating factors were considered. The fact that minimum sentence were outlawed did not in itself make the sentence meted out to be unlawful. I therefore find that this court cannot entertain the application for rehearing and resentencing. In the present petition, I find no further new and compelling evidence that has become available to entertain the issues on review of sentence.
7. For those reasons, I dismiss the petition for want of jurisdiction.
DATED, SIGNED AND DELIVERED AT KERICHO THIS 29TH DAY OF FEBRUARY, 2024. ..............................J.K. SERGONJUDGEIn the presence of:C/Assistant - RutohProsecutor – Mr. MusyokiPetitioner – Present in Person