Martin Nyongesa v Republic [2022] KEHC 1941 (KLR)

REPUBLIC OFKENYA

INT EH HIGH COURT OF KENYA AT KITALE

MISC. CRIMINAL APPLICATION NO. 7 (E143 )OF 2021

MARTIN NYONGESA.................................................APPLICANT

VERSUS

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

RULING

The Applicant, Martin Nyongesa Wanyonyi was convicted of the offence of defilementas prohibited by Section 8(1) as read with Section 8(3) of the Sexual Offences Act.    The  trial court   found it as a fact that the prosecution had proved  to the required  standard of proof that the Applicant  had on diverse   dates between  14th October 2009 and 6th November 2009 unlawful had carnal knowledge of  ZW a girl then aged  twelve years . He was sentenced to serve twenty (20) years imprisonment on 22nd July 2010.  His Appeal to the High court was found to be without merit and was dismissed.

It is not clear whether the Applicant preferred an appeal from the decision of this court to the Court of Appeal. What is without doubt is that the Applicant on 22nd January 2021 filed an application before this court seeking to have the reminder of the period that he is yet to serve commuted to a non-custodial sentence.  The Applicant states that in the period of more than ten (10) years that he has been in lawful custody, he has undertaken various courses that will serve him well upon his release from prison.  He attached several certificates as proof that he had completed various trades while serving his sentence.  He also attached a recommendation letter from the Prison Authorities indicating that he has been a model prisoner.

This court has carefully considered the Applicant’s plea for reconsideration of his sentence.  Unfortunately for the Applicant, since the clarification by the Supreme Court of the extent of the application of Francis Karioko Muruatetu Vs R [2021] eKLR,this court lacks jurisdiction to entertain or to consider any application for resentencing where the court had previously rendered its decision on the same.  The functus officio rule now applies.  The only remedy available to the Applicant (if he already has not done so) is to ventilate his appeal before the Court of Appeal.

In the premises therefore, the Application lacks merit and is hereby dismissed.  File is ordered closed.

DATED AT KITALE THIS 23RD DAY OF FEBRUARY 2022.

L. KIMARU

JUDGE