Helisha Oyoo Oyugi v Republic [2018] KEHC 758 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KISUMU

PETITION NO.69 OF 2018

CORAM: CHERERE- J.

BETWEEN

HELISHA OYOO OYUGI..........................................................PETITIONER

AND

REPUBLIC.................................................................................RESPONDENT

JUDGMENT

Introduction

1.  HELISHA OYOO OYUGI, (hereinafter referred to as the petitioner) was convicted and sentenced to 20 years imprisonment for the offence of Defilement contrary to section 8!) as read with section 8(3) of eth Sexual Offences Act.  He appealed in Kisumu High Court Criminal Appeal No. 125 of 2010which were dismissed and the conviction and sentence were upheld. He subsequently appealed to the Court of Appeal in Kisumu Criminal Appeal No.342 of 2011. The Court of Appeal similarly upheld his conviction and sentence.

2.   By a petition filed on 12th July, 2018, the petitioner has petitioned this court for resentencing citing his long period spent in custody.

3. Mr. Muia learned counsel for the state submitted that the court has no jurisdiction to review the sentence as sought by the petitioner.

Analysis and Determination

4.  The Supreme Court decision in Francis Karioki Muruatetu & Another v Republic & 5 others [2016] eKLR that declared the mandatory death sentence unconstitutional has necessitated resentencing of all persons previously sentenced to the mandatory death sentence.

5. The petitioner herein was not sentenced to death and is unfortunately therefore not eligible for resentence.

6.  Consequently, the Petition is found to have no merit and it is dismissed

DATED AND SIGNED IN KISUMU THIS1stDAY OFNovember2018

T. W. CHERERE

JUDGE

Read in open court in the presence of-

Court Assistant- Felix

Petitioner- Present in person

For the State- Mr. Muia