Namunyu v Republic [2022] KEHC 13853 (KLR)

Namunyu v Republic (Miscellaneous Criminal Application 31 of 2020) [2022] KEHC 13853 (KLR) (7 October 2022) (Ruling)

Neutral citation: [2022] KEHC 13853 (KLR)

Republic of Kenya

In the High Court at Kakamega

Miscellaneous Criminal Application 31 of 2020

WM Musyoka, J

October 7, 2022

Between

Evans Namunyu

Applicant

and

Republic

Respondent

Ruling

1. The undated application filed herein on June 22, 2020, principally seeks review of sentence. The applicant had been convicted of gang rape, contrary to section 10 of the Sexual Offences Act, No 3 of 2006. He filed an appeal in Kakamega HCCRA No 58 of 2017. The appeal was against both conviction and sentence. I heard it and dismissed it, vide a judgment that I delivered on December 20, 2019.

2. This is what I said at paragraph 16 of that judgement with respect to sentence:'Finally, is the question of sentence. The penalty prescribed is imprisonment for a term of not less than fifteen years. It is a mandatory sentence. In view of recent developments on the law relating to minimum and mandatory sentences I need to consider whether I should intervene in this case. Both appellants pleaded leniency on grounds that they had families to take care of. The trial court gave them the minimum sentence available. This is a case where two able-bodied and armed men attacked a defenceless woman in the dead of the night and sexually molested her after issuing threats to harm her. It would appear that they were intent of committing other offences. I believe that the circumstances were grave enough to warrant the sentences that the trial court awarded.'

3. The issue of sentence was before the appellate court, and was addressed by the court. The appellant had a chance to raise the issue that he now raises before the appellate court. What he is now seeking, through these proceedings, is a second bite at the cherry,. I find no merit and I hereby dismiss the application.

4. I may add, for the record, that this is one of the matters that were pending before F Amin J. It was due for ruling on March 30, 2022. The file was handed over to me on June 16, 2022.

DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA ON THIS 7THDAY OF OCTOBER,2022. WM MUSYOKAJUDGEErick Zalo, Court Assistant.Evans Namunyu, the applicant, in person.