Joseph Mutinda Mwanzia v Republic [2021] KEHC 9570 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT EMBU

CRIMINAL REVISION NO. 132 OF 2020

JOSEPH MUTINDA MWANZIA.........................APPLICANT

VERSUS

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

RULING

1. The applicant herein was charged and convicted for the offence of Defilement contrary to Section 8(1)(2) of the Sexual Offences Act No. 3 of 2006 and was sentenced to life.

2. After the conviction and sentence, he appealed against both the conviction and the sentence in Criminal Appeal No. 149 of 2012 but the appeal was dismissed. He proceeded to the Court of Appeal at Nyeri in Criminal Appeal No. 91 of 2013 which appeal was also not successful.

3. Following the Supreme Court decision in Petition 15 and 16 of 2015, he applied for resentencing and the life sentence was substituted with 25 years term of imprisonment.

4. He has now moved this court by another application for revision dated the 9th October 2020 which is based on the following grounds;

1)That the imposed sentence was harsh and excessive.

2)That he is entitled and qualified for the benefit of the law under Article 27(1)(2)(4) of the Constitution.

3)That the court did not apply Sections 216 and 329 of the Criminal Procedure Code.

4)That the court do consider that he has already served 2/3 of the imposed sentence of 25 years and thus he be granted non-custodial sentence.

5. When the application came up for hearing, the petitioner filed written submissions in which he reiterated his grounds in support of the application. In addition, he submitted that the High Court has jurisdiction to hear and determine this application under Article 165(3)(d)(i)(ii) and 6 of the Constitution.

6. In her response, counsel for the respondent submitted that the court has already revised the sentence in Criminal Revision Application No. 9 of 2013 and therefore, the application is misconceived.

7. The court has considered the application and the submissions by both the petitioner and counsel for the respondent. The petitioner himself has admitted having filed an application for resentencing wherein his sentence was reduced to 25 years imprisonment.

8. As for the other grounds, this court does not have jurisdiction to order that the petitioner do serve the remaining part of the sentence while on probation and/or impose a non-custodial sentence.

9. In the end, I find that the application has no merits and the same is hereby dismissed.

10. It is so ordered.

Delivered, dated andsignedat Embuthis27thday of January, 2021.

L. NJUGUNA

JUDGE

...............................for the Applicant

...............................for the Respondent