Masesi v Republic [2023] KEHC 25430 (KLR)

Masesi v Republic (Constitutional Petition 127 of 2022) [2023] KEHC 25430 (KLR) (17 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25430 (KLR)

Republic of Kenya

In the High Court at Makueni

Constitutional Petition 127 of 2022

TM Matheka, J

November 17, 2023

IN THE HIGH COURT OF KENYA AT MAKUENI CONSTITUTIONAL PETITION (REV) NO. 127/2022. IN THE MATTER OF ARTICLES 22(1) 23 (1) (3)(d), 24(1) (d), 2(a) (b) (c), 25 (a), 20 (1) (2) (3) (a), 47, 48, 51(1), 52, 159, 165 (3) (d) (ii), 258(i) & (ii), 259(i), 27, 48, & 165 OF THE CONSTITUTION OF KENYA AND SECTION 3 & 4 OF THE PROBATION ACT (SIC) CAP 64 LAWS OF KENYA. AND IN THE MATTER OF SECTION 3(b) OF THE COMMUNITY SERVICE ORDERS ACT NO. 10 LAWS OF KENYA.

Between

Wilson Mwololo Masesi

Applicant

and

Republic

Respondent

Judgment

1. Through a certificate of urgency filed on 22th April 2022 the petitioner filed a Notice of Motion together with the petition on the basis that his rights under Articles, 23, 24 & 25, read together with Article 50(2) have been violated - that Section 3 and 4 (2) of the Probation of Offenders Act are applicable to him and that Section 333 of the Criminal Procedure Code should be applied to him.

2. I have perused the petition, the affidavit in support, the record in HCCRA 2/2019.

3. The petitioner was charged with three counts of Sexual Assault Contrary to Section 5(1) (a) (1) (2) of the Sexual Offences Act.He was convicted and sentenced to 10 years’ imprisonment on each count to run concurrently on 17th December 2018 in Kilungu MC SOA 18/18.

4. He then filed an appeal - HCCRA 2/19. On 11th October 2019 the High Court dismissed his appeal against the conviction and sentence - and directed that the sentence to run from the date of his arrest.

5. In support of his petition the petitioner filed submissions on 6th October 2022. He submitted that he was an old man “to waste all those years in custody” and was seeking a non-custodial sentence.He urged the court to set him free.

6. On its part the state objected to the petition - that the petitioner had filed an appeal which had been determined by court of equal jurisdiction and was seeking this court to sit on appeal of another Judge’s judgment.

7. That the period spent in custody pending the hearing and determination of his case in the subordinate court was considered during the appeal. That the petition had no merit.

8. The issue for determination is whether the petition/application for revision has any merit.

9. It is true that the petitioner did file an appeal no. 2/2019 which was heard and determined by the Hon. Justice C. Kariuki.

10. That the court dismissed his appeal, sustained the conviction and the sentence and directed that the sentence to start from the date the appellant was arrested. In the circumstances - Section 333 of the Criminal Procedure Code is not applicable to the petitioner.

11. With respect to alleged violation of his rights - there is no evidence that the applicant has given to this court to demonstrate that any of the rights he alleges to have been violated were violated.

12. As to whether the applicant should serve a non-custodial sentence the petitioner gives the reason/ground - that he is too old to waste all that time in prison – really? The petitioner is not seeing the value of his imprisonment as a consequence of a legitimate sentence - if he considers it a waste of time - then perhaps he has not appreciated the fact that he was found guilty of a sexual offence.

13. In addition, his appeal against the conviction and sentence was dismissed, the conviction and sentence upheld by this court.

14. It is my view that the orders sought by the petitioner are actually a further appeal disguised as a petition/ criminal revision. They can only come from the superior court.

15. In the circumstances the petitioner/revision is without merit, the same is dismissed accordingly.

DATED SIGNED AND DELIVERED THIS 17TH DAY OF NOVEMBER 2023. ………………………………………………………………………MUMBUA T. MATHEKAJUDGE