Titus Muasya Katiku v Republic [2020] KEHC 1171 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

Coram:  D. K. Kemei - J

MISCELLANEOUS CRIMINAL APPL. NO. 58 OF 2020

TITUS MUASYA KATIKU.......................APPLICANT

VERSUS

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

RULING ON RESENTENCING

1. Titus Muasya Katiku, the Applicant herein was charged with defilement contrary to section 8(1) as read with section 8(4) of the Sexual Offences Act.

2. The Applicant pleaded not guilty and the case proceeded to full hearing.  He was convicted and sentenced to serve 15 years imprisonment.

3. The Applicant was aggrieved by that decision of the trial court and filed an appeal to the High Court against both the conviction and sentence.  The appeal was duly heard.  A judgment was delivered on 22. 2.2018 in which the appeal was dismissed.  The judgment confirmed the conviction and sentence. The applicant did not appeal against the decision of this court to the Court of Appeal and opted to file the present application in which he seeks a resentencing pursuant to the Supreme Court decision in Francis Karioki Muruatetu & Another v Republic & 5 Others [2016] eKLRdeclaring the mandatory death sentence unconstitutional.

4. Article 50(2)(p) of the constitution provides that an accused person has a right to the benefit of the least severe of the prescribed punishments for an offence, if the prescribed punishment for the offence has been changed between the time that the offence was committed and the time of sentencing. From the import of Article 50(2) (p) of the constitution, the applicant is not entitled to resentencing as no new law was enacted changing the sentences imposed by the Sexual Offences Act.  It seems the applicant has misconstrued the provisions of Article 50(2) of the constitution which provide as follows:

“Every accused person has the right to a fair trial,     which includes the right-

(q)  if convicted, to appeal to, or apply for the review

by, a higher court as prescribed by law’’

It is noted that the Applicant herein lodged an application on 24. 12. 2018 being Hc Cr Misc. Application number 234 of 2018 wherein he sought leave to lodge appeal out of time to the Court of Appeal which application was duly allowed on 27. 3.2019. The Applicant thereafter filed his notice of appeal to the Court of Appeal and in which he annexed his Memorandum Grounds of Appeal. That being the position, I find that the applicant’s grievances ought to be addressed at the Court of Appeal which is a higher court contemplated under article 50(2) of the constitution.

5. The Applicant has pitched tent in the cited case which has necessitated resentencing of all persons previously sentenced to the mandatory death sentence. It is noted that the applicant was not sentenced to death but to 15 years imprisonment. If the applicant seeks to challenge the issue of minimum sentence raised by the Supreme Court in the above case then he should move to the Court of Appeal where he has lodged his appeal against the sentence as this court is already functus officio having determined the first appeal.  The applicant’s conduct in approaching this court while he has already lodged a notice to a higher court amounts to an abuse of the court process and is akin to playing lottery with the court system which must be discouraged.

6. In the result it is my finding that the Applicant’s application filed on 5. 6.2020 lacks merit. The same is dismissed.

It is so ordered.

Dated and delivered at Machakos this 8th day of December, 2020.

D. K. Kemei

Judge