[2018] KEHC 1670 (KLR)
The High Court held that it lacked jurisdiction to review the applicant's sentence after having already determined his appeal, as it was functus officio. The only lawful avenue for the applicant was to appeal to the Court of Appeal if dissatisfied with the High Court's decision. Furthermore, the Sexual Offences Act...
Source-derived case information.
- Citation
- [2018] KEHC 1670 (KLR)
- Parties
- Applicant: Simon Mucee Kaunjugi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Chuka
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 126 of 2018
- Procedural Posture
- Criminal Revision / Ruling on Application for Sentence Review After Conviction and Appeal
- Outcome
- application dismissed
- Judges
- BB Limo
- Legal Topics
- Defilement, Sexual Offences Act, Sentence Review, Jurisdiction of High Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Simon Mucee Kaunjugi
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Application for Sentence Review After Conviction and Appeal
Legal Issues
- 1 Whether the High Court has jurisdiction to review a sentence after it has already determined an appeal on the same matter.
- 2 Whether the applicant is entitled to a non-custodial sentence after serving part of a life sentence for defilement of a minor under the Sexual Offences Act.
Ratio Decidendi
The High Court held that it lacked jurisdiction to review the applicant's sentence after having already determined his appeal, as it was functus officio. The only lawful avenue for the applicant was to appeal to the Court of Appeal if dissatisfied with the High Court's decision. Furthermore, the Sexual Offences Act mandates a life sentence for defilement of a child aged 11 years or less, leaving no discretion for a non-custodial sentence. The application for review was therefore not tenable in law and was dismissed.
Court Disposition
application dismissed
Orders
- The application for review of sentence is disallowed.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT CHUKA
CRIMINAL REVISION NO. 126 OF 2018
SIMON MUCEE KAUNJUGI.........APPLICANT
VERSUS
REPUBLIC...................................RESPONDENT
(FROM ORIGINAL AND CONVICTION AND SENTENCE IN CRIMINAL CASE NO.620 OF 2012 OF THE RESIDENT MAGISTRATE'S COURT AT MARIMANTI)
R U L I N G
1. SIMON MUCEE KAUNJUGI, the applicant herein was charged and convicted of the offence of defilement contrary to Section 8(1) (2) of theSexual Offences Act No. 3 of 2016 vide Marimanti Principal Magistrate'sCourt Criminal Case No. 620 of 2012. H was sentenced to serve life imprisonment in accordance with Section 8 (2) of the Sexual Offences Actas the victim he defiled was aged 9 years old.
2. The applicant has now moved this court under the provisions of Section 362 and364 and has asked this court to call for the lower court file (MarimantiPrincipal Magistrate's Court Criminal Case No.620 of 2012 and also look at his Criminal Appeal No. 7 of 2016 which was determined by this court, with a view to reviewing his sentence. The grounds for his application is that he has served 7 years in prison and therefore should be considered for a non custodial sentence.
3. The respondent through the Director of the Public Prosecution has opposed this application contending that the law does not in the circumstances allow for a review given the nature of offence committed.
4. This court has considered this application and though this court notes that the applicant is quite advanced in age, the court's hands are tied. This court considered his appeal and found no merit on the same. The applicant's grievance lay on appeal and the provisions of Section 364(5) of the Criminal Procedure Code does not allow this court to review a matter where an appeal lies. The applicant ought to have appealed against the decision of this court because having rendered itself the court became functus officio. I can recall a file from a lower court under Section 362 in order to satisfy myself on the correctness, legality, regularity and proprietness of a sentence from a lower court but the law does not allow me to do the same over a matter/file in this court.
5. Secondly, the Sexual Offences Act was passed by parliament for the purposes of prevention and protection of all persons especially young persons from harm and unlawful sexual acts from sexual predators such as the applicant herein. It is for that reason that penalties provided are harsh and punitive with a view to attaining the very purpose for which the statute was enacted to protect children from harm. Section 8(2) of the cited statute provides that a person who commits an offence of defilement with a child aged 11 years or less shall upon conviction be sentenced to life. That is the position of the law and the applicant was properly convicted upon full trial. His conviction and sentence was upheld by this court and the only avenue opened for the applicant was to pursue an appeal in the Court of Appeal if he was dissatisfied or aggrieved about the decision of this court. The option the applicant has taken for review is not tenable in law and for that reason this application is disallowed.
Dated, signed and delivered at Chuka this 17th December, 2018
R.K. LIMO
JUDGE
17/12/2018
Ruling signed, dated and delivered in the presence of applicant in person and Momanyi for Respondent.
R.K. LIMO
JUDGE
17/12/2018