[2020] KEHC 5744 (KLR)
The court held that the applicant was not sentenced to the mandatory death penalty but to life imprisonment, which was the minimum sentence prescribed by the Sexual Offences Act. The Supreme Court decision in Muruatetu applies to those sentenced to the mandatory death penalty, not to the applicant's circumstances....
Source-derived case information.
- Citation
- [2020] KEHC 5744 (KLR)
- Parties
- Applicant: Patrick Mwendwa Makau; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 120 of 2019
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Resentencing
- Outcome
- application dismissed
- Judges
- BC Koech
- Legal Topics
- Defilement Sentencing, Resentencing Applications, Mandatory Sentences, Functus Officio, Constitutional Rights in Sentencing
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Patrick Mwendwa Makau
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 in Francis Karioko Muruatetu & Another v Republic & 5 Others [2016] eKLR.
- 2 Whether the High Court is functus officio and therefore lacks jurisdiction to entertain the resentencing application.
Ratio Decidendi
The court held that the applicant was not sentenced to the mandatory death penalty but to life imprisonment, which was the minimum sentence prescribed by the Sexual Offences Act. The Supreme Court decision in Muruatetu applies to those sentenced to the mandatory death penalty, not to the applicant's circumstances. Furthermore, the High Court is functus officio, having already determined the applicant's appeal on both conviction and sentence, and thus lacks jurisdiction to entertain a resentencing application. Any further challenge must be addressed to the Court of Appeal. Accordingly, the application for resentencing lacks merit and is dismissed.
Court Disposition
application dismissed
Orders
- The application for resentencing filed by the applicant on 31.07.2019 is dismissed.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MACHAKOS
Coram: D. K. Kemei - J
MISCELLANEOUS CRIMINAL APPL. NO. 120 OF 2019
PATRICK MWENDWA MAKAU...........................................................APPLICANT
VERSUS
REPUBLIC.............................................................................................RESPONDENT
RULING ON RESENTENCING
1. Patrick Mwendwa Makau, 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 and sentenced by the trial court to serve 20 years’ imprisonment.
3. The Applicant was aggrieved by that decision and he filed an appeal to the High Court against both the conviction and sentence. The appeal was duly heard. A judgement was delivered on 6. 2.2017 by Lady Justice P. Nyamweya. The judgment confirmed the conviction and enhanced the 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, as well as the functus officio doctrine the applicant is not entitled to resentencing.
5. The cited case has necessitated resentencing of all persons previously sentenced to the mandatory death sentence. The applicant was not sentenced to death but to life imprisonment which was the minimum sentence provided by the Act.
6. Further this court is functus officio. Such an application can only be entertained by a higher Court – the Court of Appeal. The applicant is advised to move to the said court which will address both issues of conviction and sentence. By entertaining the matter then it will tantamount to this court sitting on appeal in a matter that it is already functus officio.
7. In the result it is my finding that the application lodged by the applicant and filed on 31. 07. 2019 lacks merit. The same is dismissed.
Orders accordingly.
Dated and delivered at Machakos this 26th day of May, 2020.
D. K. Kemei
Judge