[2023] KEHC 26731 (KLR)

Wepukhulu v Republic (Criminal Petition E001 of 2020) [2023] KEHC 26731 (KLR) (15 December 2023) (Judgment)

Neutral citation: [2023] KEHC 26731 (KLR)

Republic of Kenya

In the High Court at Bungoma

Criminal Petition E001 of 2020

DK Kemei, J

December 15, 2023

Between

Albert Wanjala Wepukhulu

Petitioner

and

Republic

Respondent

Judgment

1. The petitioner vide petition dated 1st December, 2020 seeks the following orders;a.The sentence be set aside.b.The matter be referred back to the Chief Magistrate Court Bungoma for re-sentencing after considering previous records of the accused and mitigation.

2. In support of the petition, the petitioner deposes inter alia; that he was sentenced by the trial court in December, 2014 to life imprisonment; that he appealed to the High Court in Bungoma vide HCRA No. 154 of 2014 which was dismissed; that he is a man of advanced age thus deserving of the favours and the discretionary powers of the court to entertain the petition. That in his mitigation, he had indicated that he is a widower taking care of seven children and his aged mother. That his family had been left in a sorry state depending on menial jobs and relatives for their survival; that had the court considered these facts, it could have arrived at a different sentence regardless of the mandatory minimum sentence imposed by statute; that his petition be allowed in that it is meritorious.

3. The parties made oral submissions in court. Learned counsel Mr. Sichangi for the petitioner argued that they are not challenging the propriety of the sentence but the new reforms on sentencing policy. That the petitioner is seeking a fresh sentence re-hearing so that the time of life imprisonment could be considered. That the petitioner is not urging the court to determine the propriety of the sentence but the reforms in the sentencing policies. That at the time of trial, the petitioner was unrepresented and therefore did not appreciate the whole trial and he would have benefitted from the doubt cast on the prosecution’s case. Counsel refers to Muruatetu 2 decision that each case ought to be considered on its own circumstances. He also referred to Mombasa Court of Appeal decision in Criminal appeal No. 110 of 2022; Makumbi Manyeso vs Republic for the position that the criminal justice system is meant to rehabilitate offenders. That the petitioner has served 10 years and ought to be released back to the society on a second chance as he has not benefited from the presidential power of mercy.

4. On its part, the respondent through learned counsel Ms. Omondi submitted that the punishment under section 8(1) as read with 8(2) of the Sexual Offences Act is life imprisonment due to the victim’s age. That the purpose of a sentence is to deter the accused from committing similar offences. That life imprisonment is a legal sentence under the laws of Kenya and can be meted out depending on the circumstances of each case. That if there was an issue regarding the petitioner’s representation in the lower court and the attendant prejudice, the same could have been presented during the petitioner’s appeal. That the conviction was entered by a court of competent jurisdiction and affirmed on appeal. That the petitioner had filed a similar application seeking re-sentence and that the same was dismissed by Riechi J on 30/7/2021 and that if this application is allowed, the same would amount to this court sitting on appeal from its decision.

Analysis and determination. 5. From the material available and the parties’ submissions, I find that the only issue for determination in this petition is whether this court can vary, set aside and or alter the sentence meted herein.

6. The petitioner’s case is basically hinged on the recent developments in our jurisprudence regarding sentencing of offenders. It is common ground the petitioner was tried and convicted of the offence of defilement contrary to Section 8(1) as read with 8(2) and ultimately sentenced to serve life imprisonment.

7. It is not disputed that after being sentenced as such in the subordinate court, the petitioner moved this court on appeal vide criminal appeal number 154 of 2014 wherein the petitioner’s appeal was dismissed by Githinji J on 24/7/2017.

8. The record also shows that the petitioner’s application was placed before Riechi J on 30th July, 2021 and that the learned judge after considering the application found that this court didn’t have jurisdiction to review the sentence and advised the applicant to file an appeal in the Court of Appeal.

9. Clearly, and in light of the foregoing, this court is not properly seized of the matter to grant the orders sought. The matter having been adjudicated by this court, the proper avenue for the petitioner at this this stage is to pursue an appeal to the Court of Appeal as advised by Riechi J. The applicant’s, counsel’s contention that the orders given by Riechi J were issued pursuant to a request letter by the applicant is not correct since the said learned judge had deliberated on the matter upon perusal of the file and issued the orders. It would therefore appear that this court is already functus officio. The applicant confirms that he opted not to lodge an appeal to the Court of Appeal yet he knows that this court is already functus officio. The Supreme Court of Kenya issued guidelines dated 6th July, 2021 wherein it clarified that the decisional law in Francis Karioko Muruatetu & Another V. R [2017] eKLR was only in regard to offences of murder and not any others. Prior to the said guidelines, there had been a floodgate of cases lodged pursuant to the decision by the Supreme Court in Muruatetu (I). That being the position, the doors to such applications were closed. This case involved an offence of defilement and thus it does not fall within the scope of matters as directed by the Supreme Court in Muruatetu case (Supra). The applicant has no other option but to approach the Court of Appeal for redress.

10. The above being the case, I find no merit in this petition and hereby proceed to dismiss it.

DATED AND DELIVERED AT BUNGOMA THIS…15TH DAY OF DECEMBER, 2023. D.KEMEIJUDGEIn the presence of :ALBERT WANJALA WEPUKHULU PetitionerSichangi for PetitionerMwaniki for Petitioner for RespondentKIZITO Court Assistant