REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
HCCRIM MISCELLENOUS APPLIC NO. E080 OF 2023
KENNEDY MUTINDA MUTUA................................................................APPLICANT
-VERSUS-
REPUBLIC.........................................................................................RESPONDENT
RULING
Background
1. The Applicant was charged with the offence of defilement contrary to Section 8(1) as read with Section 8 (2) of the Sexual Offences Act No. 3 of 2006. Particulars are that on the 14th February 2010 at (particulars withheld) in Matungulu District within Eastern Province, he intentionally and unlawfully caused his male genital organ (penis)to penetrate into the female genital organ (vagina) of FWW (name withheld) a child aged 10 years.
2. The Appellant was charged at Kithimani Principal Magistrate’s Court in Criminal Case No. 4 of 2010. The Appellant pleaded guilty to the charges and upon the Prosecution reading out the facts to the Applicant he responded that they were true and he was thereafter convicted on his own plea of guilty. Upon mitigation he was sentenced to life imprisonment.
3. The Applicant being dissatisfied with the conviction and sentence filed a first Appeal to the High Court at Machakos in Criminal Appeal No. 19 of 2012. The High Court being a court of first appeal evaluated the entire evidence. The Learned Judge L.N. Mutende dismissed the appeal in its on 3rd March 2014.
4. Being dissatisfied with the High Court judgment, the Applicant filed a second Appeal to the Court of Appeal at Nairobi in Criminal Appeal No. 41 of 2016. After hearing of the second Appeal the Court of Appeal was satisfied that the offence of defilement was proved and that the Applicant defiled FWW (name withheld). On 24th April 2020, the Court of Appeal dismissed the appeal against the conviction but allowed the appeal on sentence and set aside the sentence of life imprisonment that was imposed on the Applicant, and substituted thereto a sentence of 30 years imprisonment to run from 19th February 2010 the date on which the Appellant was convicted.
Applicant’s Application
5. The Applicant has thus filed a Chamber Summons application 27th September 2023 and his supporting affidavit attached thereto dated 27th September 2023. The Applicant seeks for re-sentencing of his sentence of 30 years downwards to a lenient sentence.
6. In opposing the application, the Respondent/State filed grounds of opposition dated a 28th October 2024 as follows:
a. That the orders sought are incapable of being granted by this court.
b. That the application field herein is not only misconceived and bad in law but also misplaced since this court is functus officio in this mater.
c. That this court lacks jurisdiction to hear and determine this application since the sentence sought to be reviewed was passed by the Court of Appeal and this court had no supervisory jurisdiction over that court as provided for under Article 165 (6) of the Constitution.
7. A look at the record shows that both copies of the High Court Criminal Appeal No. 19 of 2012 and the Court of Appeal No.41 of 2016 judgements were availed to court and I have had the opportunity to read them.
Submissions
8. The application was directed to be canvassed by way of written submissions. Both parties complied, the applicant’s submissions are dated 9th January 2025 whilst the Respondent’s submissions are dated 7th March 2025.
9. The Applicant was explicit that the review is confined to the sentence imposed on him, and that it is premised on the grounds and mitigating factors set out in his application and the authorities he has cited. He invited the court to take into consideration that he has engaged in rehabilitative programs while in prison which have reformed him and improved his overall character. He urged this court to consider the application and give the relief that is sought while invoking the principles of natural justice and if possible, declare that the sentence the Applicant has served is enough punishment and the Appellant has been sufficiently punished as was held in Bethwel Kibor v Republic (2009) eKLR.
10. Learned Counsel for the Respondent, Ms. Agatha Abang, opposed the application. In her submissions, she confirmed that the Applicant was charged with the offence of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act; that upon conviction he was sentenced to life imprisonment; that he appealed against conviction and sentence to the High Court and the appeal was dismissed. He filed a second appeal to the Court of Appeal which dismissed the appeal against the conviction but allowed the appeal on sentence and set aside the sentence of life imprisonment that was imposed on the Applicant, and substituted thereto a sentence of 30 years.
11. The Respondent urged this court to dismiss the application in its entirety for lack of merit.
Analysis and Determination
12. I have given careful consideration to the application and the parties’ rival submissions thereto.
13. Accordingly, I have perused the appeal judgments before this court in Machakos High Court Appeal No. 44 of 2019 and the Court of Appeal No.103 of 2020.
14. The Applicant seeks a review of his sentence. He was convicted for the offence of defilement contrary to Section 8(1) as read with Section 8 (2) of the SOA and sentenced to life imprisonment.
15. He appealed in HCRA. No. 19 of 2012 and on 03/03/2014 Judge L. N. Mutende dismissed the appeal. He filed a second appeal to the Court of Appeal at Nairobi in Criminal Appeal Case No. 41 of 2016 and the life sentence was reduced to 30 years. He has now applied to this High Court seeking further review or resentencing of the sentence downwards.
16. It is my considered view that the Applicant has exhausted his Right of Appeal in the High Court and Court of Appeal. Having benefited from the Court of Appeal’s judgement. The Applicant cannot come back to this court for another review because this court is functus officio. If he has any grievances, he can only move the Supreme Court.
17. For the above reason’s the application for review of the sentence of 30 years imprisonment downwards is declined save that I will exercise the powers donated to me under Article 165 (3) (a) of the Constitution and Section 333(2) of the Criminal Procedure Code and proceed to grant the remedy of giving enhanced credit to the Applicant for the sentence of 30 years imprisonment to discount the period spent in custody pending trial.
18. Orders accordingly.
19. File closed.
RULING WRITTEN, DATED & SIGNED AT MACHAKOS THIS 29TH MAY 2025
NOEL I. ADAGI
JUDGE
DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 29TH MAY 2025
In the presence of :
At Kitengela Prison......Appellant
.Ms. Agatha........ ..for Respondent
Wambua.............. Court Assistant
IN THE HIGH COURT OF KENYA AT MACHAKOS
HCCRIM MISCELLENOUS APPLIC NO. E080 OF 2023
KENNEDY MUTINDA MUTUA................................................................APPLICANT
-VERSUS-
REPUBLIC.........................................................................................RESPONDENT
RULING
Background
1. The Applicant was charged with the offence of defilement contrary to Section 8(1) as read with Section 8 (2) of the Sexual Offences Act No. 3 of 2006. Particulars are that on the 14th February 2010 at (particulars withheld) in Matungulu District within Eastern Province, he intentionally and unlawfully caused his male genital organ (penis)to penetrate into the female genital organ (vagina) of FWW (name withheld) a child aged 10 years.
2. The Appellant was charged at Kithimani Principal Magistrate’s Court in Criminal Case No. 4 of 2010. The Appellant pleaded guilty to the charges and upon the Prosecution reading out the facts to the Applicant he responded that they were true and he was thereafter convicted on his own plea of guilty. Upon mitigation he was sentenced to life imprisonment.
3. The Applicant being dissatisfied with the conviction and sentence filed a first Appeal to the High Court at Machakos in Criminal Appeal No. 19 of 2012. The High Court being a court of first appeal evaluated the entire evidence. The Learned Judge L.N. Mutende dismissed the appeal in its on 3rd March 2014.
4. Being dissatisfied with the High Court judgment, the Applicant filed a second Appeal to the Court of Appeal at Nairobi in Criminal Appeal No. 41 of 2016. After hearing of the second Appeal the Court of Appeal was satisfied that the offence of defilement was proved and that the Applicant defiled FWW (name withheld). On 24th April 2020, the Court of Appeal dismissed the appeal against the conviction but allowed the appeal on sentence and set aside the sentence of life imprisonment that was imposed on the Applicant, and substituted thereto a sentence of 30 years imprisonment to run from 19th February 2010 the date on which the Appellant was convicted.
Applicant’s Application
5. The Applicant has thus filed a Chamber Summons application 27th September 2023 and his supporting affidavit attached thereto dated 27th September 2023. The Applicant seeks for re-sentencing of his sentence of 30 years downwards to a lenient sentence.
6. In opposing the application, the Respondent/State filed grounds of opposition dated a 28th October 2024 as follows:
a. That the orders sought are incapable of being granted by this court.
b. That the application field herein is not only misconceived and bad in law but also misplaced since this court is functus officio in this mater.
c. That this court lacks jurisdiction to hear and determine this application since the sentence sought to be reviewed was passed by the Court of Appeal and this court had no supervisory jurisdiction over that court as provided for under Article 165 (6) of the Constitution.
7. A look at the record shows that both copies of the High Court Criminal Appeal No. 19 of 2012 and the Court of Appeal No.41 of 2016 judgements were availed to court and I have had the opportunity to read them.
Submissions
8. The application was directed to be canvassed by way of written submissions. Both parties complied, the applicant’s submissions are dated 9th January 2025 whilst the Respondent’s submissions are dated 7th March 2025.
9. The Applicant was explicit that the review is confined to the sentence imposed on him, and that it is premised on the grounds and mitigating factors set out in his application and the authorities he has cited. He invited the court to take into consideration that he has engaged in rehabilitative programs while in prison which have reformed him and improved his overall character. He urged this court to consider the application and give the relief that is sought while invoking the principles of natural justice and if possible, declare that the sentence the Applicant has served is enough punishment and the Appellant has been sufficiently punished as was held in Bethwel Kibor v Republic (2009) eKLR.
10. Learned Counsel for the Respondent, Ms. Agatha Abang, opposed the application. In her submissions, she confirmed that the Applicant was charged with the offence of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act; that upon conviction he was sentenced to life imprisonment; that he appealed against conviction and sentence to the High Court and the appeal was dismissed. He filed a second appeal to the Court of Appeal which dismissed the appeal against the conviction but allowed the appeal on sentence and set aside the sentence of life imprisonment that was imposed on the Applicant, and substituted thereto a sentence of 30 years.
11. The Respondent urged this court to dismiss the application in its entirety for lack of merit.
Analysis and Determination
12. I have given careful consideration to the application and the parties’ rival submissions thereto.
13. Accordingly, I have perused the appeal judgments before this court in Machakos High Court Appeal No. 44 of 2019 and the Court of Appeal No.103 of 2020.
14. The Applicant seeks a review of his sentence. He was convicted for the offence of defilement contrary to Section 8(1) as read with Section 8 (2) of the SOA and sentenced to life imprisonment.
15. He appealed in HCRA. No. 19 of 2012 and on 03/03/2014 Judge L. N. Mutende dismissed the appeal. He filed a second appeal to the Court of Appeal at Nairobi in Criminal Appeal Case No. 41 of 2016 and the life sentence was reduced to 30 years. He has now applied to this High Court seeking further review or resentencing of the sentence downwards.
16. It is my considered view that the Applicant has exhausted his Right of Appeal in the High Court and Court of Appeal. Having benefited from the Court of Appeal’s judgement. The Applicant cannot come back to this court for another review because this court is functus officio. If he has any grievances, he can only move the Supreme Court.
17. For the above reason’s the application for review of the sentence of 30 years imprisonment downwards is declined save that I will exercise the powers donated to me under Article 165 (3) (a) of the Constitution and Section 333(2) of the Criminal Procedure Code and proceed to grant the remedy of giving enhanced credit to the Applicant for the sentence of 30 years imprisonment to discount the period spent in custody pending trial.
18. Orders accordingly.
19. File closed.
RULING WRITTEN, DATED & SIGNED AT MACHAKOS THIS 29TH MAY 2025
NOEL I. ADAGI
JUDGE
DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 29TH MAY 2025
In the presence of :
At Kitengela Prison......Appellant
.Ms. Agatha........ ..for Respondent
Wambua.............. Court Assistant