1) On 10/4/2019, the Applicant DANIEL MAILU WAITA was convicted and sentenced to serve 15 years imprisonment for the offence of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act in Makueni MCCR 15/2017.
2) He filed HCCRA 72/2019 against the conviction and sentence. The appeal was dismissed vide judgment on 10/11/2020 where the court stated;
I find that the main charge of incest was proved beyond reasonable doubt. I hereby correct the errors made by the learned trial magistrate by quashing both the acquittal on the main charge and conviction on the alternative count. I substitute them with a conviction on the main charge of incest.
The maximum sentence for incest with a minor is life imprisonment. The Appellant got away with fifteen (15) years and I will not enhance the sentence since the respondent did not issue any notice for enhancement of sentence.
The result is that the appeal lacks merit and I dismiss it in its entirety.
3) The applicant proceeded to file this undated petition her retrial/review stating;
1. That, I pleaded not guilty to the charge. However I humbly beg the honourable court (this appellate court) to allow me do application seeking for review or retrial as far as the sentence is concerned.
2. That, the learned trial magistrate did not accord me, the applicant a fair and impartial trial as per provisions of section 25(c) of the constitution.
3. That, the learned trial magistrate failed to note that the complainant and her witness had a premeditated plan against the applicant.
4. That, the learned trial magistrate failed to note that the witnesses and the evidence adduced was cooked , coached, tailored evidence to defeat justice as it was premeditated plan of cartel of people been gathered to victimize the applicant.
5. That, the learned trial magistrate erred in both law and facts by failing and did not as per provisions of section 50(2) (c) (j) of the constitution as it provides each accused person has the right to fair trial, which includes the rights (c) to have adequate time and facilities to prepare a defense; (j) to be informed in advance of the evidence the prosecution intends to rely on, and to have reasonable access to that evidence.
6. That, the accused person has right, the rights to disclosure of the prosecution case to enable an accused person prepare his defence is a fundamental right. That is the reason why the court must be satisfied that the defense has been supplied with the witness statements, documents or must be satisfied that the defence has been supplied with the witness statements, documents or report that the prosecution intends to rely on before hearing commences.
7. That, I pray this honourable court humbly view that rights of applicant was violated to fair trial and in particular Article 50(2) (c) and (j) of the constitution and find the trial to have been violated and set aside both conviction and sentence, or order for review and if possible I pray to order for acquittal.
4) He filed submissions setting out the issues for determination thus,
a) Whether the court has the jurisdiction to entertain the present petition.
b) Whether the minimum mandatory sentencing provisions under the sexual offences fetter the discretion of judges and magistrates not measuring out sentences.
c) Whether a move from this straight adherence is the way to go in Kenyans jurisprudence regarding whether this court has jurisdiction to hear and determine on the present petition before it.
5) He relied on; Joseph Kama Wakaba Vs R (2022) eKLR, where the court stated inter alia having considered the issues raised in this petition, the orders that concerned themselves to me and which I hereby grant as follows;
1. To extent that the sexual offences act prescribes minimum mandatory sentences with no discretion to trial court to determine the appropriate sentence to impose such sentence fall foul of article 28 of the Constitution. However courts are at liberty to impose sentences prescribed, there under as long as the same deemed to be the mandatory minimum prescribed sentences.
2. Taking line from the decision in Francis Karioko & Muruatettu & Another Vs Republic (2017) eKLR (Muruatetu 1) those who were convicted of sexual offences and those sentences where passed on the basis that the said mandatory minimum sentence are not liberty to petition the high court for orders of resentencing in appropriate cases.
6) On 19/3/2024, he raised an argument about the period he spent in custody pending the hearing and determination of his case in the trial court after his bond was cancelled.
7) The issue for determination is whether his application falls within the ambit of sub-section 362 -364 of Criminal Procedure Code, and Article 165 (6) & (7) of the Constitution, 2010
8) In the 1st place the applicant was not sentenced to a mandatory minimum sentence hence - his case is distinguishable from Muruatetu and the other related cases he relied on.
9) The Supreme Court has recently rendered itself against re-sentencing in sexual offence case and that Muruatetu does not apply.
10) The issue of the period spent in custody was determined when this court dismissed the appeal and confirmed the sentence and any other issue can only arise in a court of higher jurisdiction than this court.
11) The application for revision lacks merit and is dismissed.
12) The applicant has recourse in the Court of Appeal.
Dated, signed and delivered in open court this 21st March 2025
Mumbua T Matheka
Judge
In the presence of
Applicant
CA Chrispol
Mr. Kazungu for State