Migesha v Republic [2022] KEHC 13842 (KLR)

Migesha v Republic (Miscellaneous Criminal Application E083 of 2022) [2022] KEHC 13842 (KLR) (5 October 2022) (Ruling)

Neutral citation: [2022] KEHC 13842 (KLR)

Republic of Kenya

In the High Court at Siaya

Miscellaneous Criminal Application E083 of 2022

RE Aburili, J

October 5, 2022

Between

David Toet Migesha

Applicant

and

Republic

Respondent

(Being an Application against conviction and sentence in the Principal Magistrate’s Court at Bondo in Sexual Offence Case No.1072 of 2016 by Hon. E.N. Wasike, Senior Resident Magistrate on 19/5/2017 AND in Siaya HCRA No. 53 of 2016 on 12/6/2019)

Ruling

1. The applicant David Toet Migesha was convicted of the offence of defilement contrary to section 8 (1) and 8 (2) of the Sexual Offences Act by Hon. E.N Wasike Senior Resident Magistrate in Bondo PM SO 1072/2016 on May 19, 2017. He was sentenced to serve life imprisonment.

2. He appealed to this court vide HCRA 53/2016 and this court delivered judgment on 12/6/2019 dismissing his appeal against conviction but allowed the appeal against sentence, applying the principles espoused in Francis Muruatetu &anothervsRepublic [2017] eKLR case as applied in Jared Koita InjirivsRepublic [2019] e KLR among others. I resentenced the appellant to serve 30 years imprisonment to be calculated from the date of sentencing in the lower court. He has sat on that lenient term sentence for a while and has returned to this court seeking for resentencing on the grounds that he was handed an unconstitutional Minimum Mandatory Sentence. Further that he is reformed.

3. I have considered the application for resentencing.

4. I find no merit in it as the court already resentenced the applicant. That was in exercise of judicial discretion which this court cannot revisit.

5. I decline the application dated 8/7/2022 and dismiss it. The applicant to serve the lenient sentence re-imposed on him for the heinous offence committed.

6. I so order.

7. File closed.

DATED, SIGNED AND DELIVERED AT SIAYA THIS 5TH DAY OF OCTOBER, 2022R.E. ABURILIJUDGE