[2020] KEHC 1280 (KLR)
The High Court held that it could not entertain the applicant's request for resentencing because the same issues had already been raised and conclusively determined on appeal by a judge of concurrent jurisdiction. The court found that the sentencing judge had considered both aggravating and mitigating factors,...
Source-derived case information.
- Citation
- [2020] KEHC 1280 (KLR)
- Parties
- Applicant: Sonjoi Ole Sordo; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 59 of 2020
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Resentencing After Conviction and Appeal
- Outcome
- application dismissed
- Judges
- EM Ngugi
- Legal Topics
- Defilement, Sentencing Principles, Minimum Sentences, Resentencing Applications, Sexual Offences, Appeal Review
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Sonjoi Ole Sordo
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Resentencing After Conviction and Appeal
Legal Issues
- 1 Whether the High Court can entertain an application for resentencing after it has already determined the sentence on appeal.
- 2 Whether the Muruatetu doctrine applies to mandatory minimum sentences under the Sexual Offences Act in this context.
- 3 Whether the applicant's mitigation was adequately considered in the prior proceedings.
Ratio Decidendi
The High Court held that it could not entertain the applicant's request for resentencing because the same issues had already been raised and conclusively determined on appeal by a judge of concurrent jurisdiction. The court found that the sentencing judge had considered both aggravating and mitigating factors, including the applicant being a first offender and the repeated defilement of a minor. The court further held that, while the Muruatetu doctrine allows for mitigation to be considered in sentencing, it does not permit a party to re-litigate or seek review of a sentence already affirmed on appeal by the High Court. The applicant's only recourse is to appeal to the Court of Appeal,...
Court Disposition
application dismissed
Orders
- The application for resentencing is dismissed.
- No orders as to costs.
Full Case Text
Judgment text and source record
24 paragraphs
IN THE HIGH COURT OF KENYA
AT NAKURU
MISC. CRIMINAL APPLICATION NO. 59 OF 2020
SONJOI OLE SORDO........APPLICANT
VERSUS
REPUBLIC......................................STATE
RULING
1. The Applicant was arraigned before the Narok Chief Magistrate in Criminal Case No. 18 of 2016charged with a single count of defilement contrary to section 8(1) as read together with section 8(2) of the Sexual Offences Act. The particulars were that on diverse dates between January 2016 and 4th February, 2016 a Ntulele Trading Centre in Narok County, the Applicant unlawfully and intentionally caused his penis to penetrate the vagina of IW, a girl aged 6 years.
2. After a fully-fledged trial, the Trial Court convicted the Applicant and sentenced the Petitioner to life imprisonment.
3. The Applicant was aggrieved by both the conviction and sentence. He appealed to the High Court in Narok. His appeal was heard and determined by the Learned Justice Bwononga.
4. As aforesaid, among the issues the Applicant specifically took up on appeal was the sentence imposed. He argued that the sentence was manifestly harsh and excessive in the circumstances. The Learned Judge considered the arguments by the Applicant and rendered himself as follows on the question:
21. In ground 10, the Appellant has faulted the trial court both in law and fact for imposing a manifestly harsh and excessive sentence of life imprionsment. In sentencing the appellant the trial court took into account that the defilement of the 6 years old minor (sic) was done repeatedly over an extended period by giving her shs. 10/=.
22. Furthermore, the trial court found the appellant to be a dangerous sexual predator. These were aggravating factors. The trial Court failed to take into account that the appellant was a first offender, which was a mitigating factor. According to Kibigen v R (1975) EA 250, even where a minimum sentence is prescribed, the appropriate sentence must be assessed in ordinary way and, if it is less than the minimum sentence the minimum sentence must be imposed.
23. I have taken into account that the Appellant was a first offender, which was a mitigating factor and the aggravating factors namely repeatedly defiling a minor aged 6 years over an extended period, and I find that the prescribed minimum of sentence of life imprisonment (sic) was deserved. I find no basis to interfere with the sentence imposed and I therefore dismiss this ground of appeal.
5. The Applicant filed the present Application before the High Court after this judgment was rendered seeking for orders of resentencing under the Muruatetu doctrine. The Applicant argues that the mitigation he offered to the Trial Court was not considered and that therefore there should be a new sentencing hearing in line with the decision in Francis Karioko Muruatetu & Another v Republic [2017] eKLR.
6. The Learned Justice Bwononga recused himself from hearing the Application because he had heard the appeal. The Application was, hence, sent to Nakuru High Court for hearing and disposition.
7. I have considered the Application. The Application cannot lie. The points the Applicant wishes to take up on this Application are the same ones he took up on the appeal and a Judge of the High Court made specific findings thereon. He cannot re-litigate the same issue before this Court. Neither can he seek a review of the findings of the Judge of the High Court in the self-same High Court.
8. As reproduced above, the Learned Judge specifically addressed the question of sentence and whether the minimum sentence was deserved in the circumstances of this case. He ruled that it was. While our decisional law now accepts that in specific circumstances a sentencing court might impose a sentence lower than the minimum sentence prescribed by statute, in this case, the High Court has pronounced itself on the appropriate sentence in the specific circumstances of the case. Consequently, the Applicant cannot approach the High Court again for a review of the sentence. His only recourse is to file an appeal to the Court of Appeal.
9. Consequently, the undated Application/Petition herein is dismissed.
10. Orders accordingly.
Dated and delivered in Nakuru this 1stday of July, 2020
JOEL NGUGI
JUDGE
NOTE:This judgment was delivered by video-conference pursuant to various Practice Directives by the Honourable Chief Justice authorizing the appropriate use of technology to conduct proceedings and deliver judgments in response to the COVID-19 Pandemic.