Ngutu v Republic [2022] KEHC 15154 (KLR)

Ngutu v Republic (Miscellaneous Criminal Application E008 of 2022) [2022] KEHC 15154 (KLR) (8 November 2022) (Ruling)

Neutral citation: [2022] KEHC 15154 (KLR)

Republic of Kenya

In the High Court at Kisumu

Miscellaneous Criminal Application E008 of 2022

RE Aburili, J

November 8, 2022

Between

Hezron Aura Ngutu

Applicant

and

Republic

Respondent

(Application for resentencing in Maseno SRM SO No. 770/2010 and in Kisumu HCCRA No. 130 of 2012 and in Kisumu COA CRA 85/2014)

Ruling

1. This matter has been pending in court since 19/1/2022. The last time it was before Hon. F.A Ochieng J was on 14/6/2022 when he directed the applicant to file proceedings from the lower court, the High Court and the Court of Appeal.

2. From the file, the proceedings were filed on 4/7/2022 by which time, the learned Judge was on leave and he was eventually elevated to the Court of Appeal.

3. I was then deployed to Kisumu High court to attend to matters previously handled by the learned Judge from 15/9/2022.

4. I have perused the file and considered the application which seeks for resentencing on account that the applicant convict was sentenced to serve twenty years imprisonment which is the Mandatory minimum sentence in sexual offences under Section 8 (3) of the Sexual Offences Act No. 3 of 2006.

5. The applicant urges this court to consider his mitigation for a lenient sentence so that he can be allowed to rejoin the society and more so, his family. That he has been in prison for 10 years which is enough punishment. He urges the court to exercise discretion.

6. I have considered the application filed on 19/1/2022 and the proceedings conducted in the lower court vide Maseno SRM SO 770/2010 by Hon J Ongondo, SRM (then). I observe that the applicant herein took plea in 2010 and pleaded not guilty to the charge of defilement contrary to Section 8 (1) as read with section 8 (3) of the Sexual Offence Act. He was convicted after a full trial.

7. The applicant/convict herein was the teacher of the victim who was aged 13 years old and in class 6. She was accosted by one Bon on 16/6/2010 when she was going to the posho mill to grind flour, taken into his house where she found the applicant herein waiting to devour her as the door was locked from outside and the applicant, her teacher held her, took her into the bedroom, oblivious of her screams as he covered her mouth and he removed her dress and underpants then he defiled her for one hour before Bon came and opened the door and she was released to go to the flour mill. She went and informed her mother who informed her brother and they went and reported to her school administration the following day. A report was made to the police who investigated, arrested and charged the applicant. The incident was witnessed by another pupil including PW5 DO who saw the victim being accosted and being dragged into the house where the applicant herein defiled the minor.

8. Those are the circumstances under which the offence was committed.

9. The applicant denied committing the offence throughout the trial and he even filed an appeal to the High Court vide HCRA 130/2012 at Kisumu, which appeal was heard and dismissed.

10. He filed a second appeal to the Court of Appeal at Kisumu vide COA CRA 85/2014 which appeal was also heard and dismissed on 29/7/2016. He then filed an application for resentencing in Kisumu HCRA 130 of 2012 which application was heard and dismissed on 16/3/2021 by F.A Ochieng J. who in his concluding remarks, the learned judge stated as follows:15. On the issue of the sentence of 20 years imprisonment, the Petitioner asked this court to review the same, and to set him at liberty.16. However, the petitioner did not provide the court with any reason why he ought to be set at liberty. He failed to discharge the onus of justifying his plea for resentencing.17. In the result, the petition is dismissed.”

11. From the above judgment by Hon F.A.Ochieng J, no doubt, the applicant herein had petitioned this court for resentencing, and whether he now calls it sentence review or by whatever name, it is a resentencing since his appeal to the Court of Appeal was dismissed.

12. The judgment of 16/3/2021 by F.A. Ochieng, J considered the merits and demerits of the petition for resentencing and found it devoid of any merit.

13. This court cannot therefore sit on appeal of the court of concurrent jurisdiction. I find this application for resentencing an abuse of court process. It is hereby dismissed.

14. File closed.

15. I so order.

DATED, SIGNED AND DELIVERED AT KISUMU THIS 8TH DAY OF NOVEMBER, 2022R.E. ABURILIJUDGE