Wafula v Republic [2023] KEHC 24784 (KLR)

Wafula v Republic (Miscellaneous Application 12 of 2018) [2023] KEHC 24784 (KLR) (2 November 2023) (Ruling)

Neutral citation: [2023] KEHC 24784 (KLR)

Republic of Kenya

In the High Court at Bungoma

Miscellaneous Application 12 of 2018

REA Ougo, J

November 2, 2023

Between

Zablon Wafula

Petitioner

and

Republic

Respondent

Ruling

1. In a notice of motion filed on the 6th of April 2018, Zablon Wafula, the applicant seeks the following orders; that he be granted leave to make mitigation out of time and that there be a re-trial for a fresh hearing and determination. In his supporting affidavit, he depones that he pleaded guilty to the offence of defilement. He was arraigned before the court and a plea was entered on the allegation that he was not vast with and therefore he seeks a re-trial for a fair justice. The language used during the trial even though Kiswahili he did not understand the allegation properly and he only prays for a second chance in the lower court. That the trial magistrate did not warn him about the consequences that would arise when one pleads guilty for such an offense of defilement and that had he known he would not have pleaded guilty.

2. At the hearing of the applicant the applicant told the court that he wants his sentence reduced. He is currently serving a 30-year imprisonment term. He filed an appeal in the high court and his appeal was dismissed. He did not file an appeal in the Court of Appeal.

3. The application was opposed. Miss Omondi submitted that the applicant was charged with defilement contrary to sections 8(1) and (2) of the Sexual Offence Act (the Act). The applicant pleaded guilty to the offense and was sentenced to serve 30 years imprisonment. The Act provides for a life sentence. The applicant filed an appeal and the appeal was dismissed and the conviction and sentence were upheld. The victim was nine (9) years old and the sentence in the circumstances was lenient. Since he pleaded guilty he was only allowed to appeal the legality of the sentence. The appeal should be dismissed and further, the court lacks jurisdiction and the sentence was lenient.

4. I have considered the application. What the applicant is seeking in his application is a re-trial and whilst in court he asked the court to reduce his sentence. What he depones in his supporting affidavit amounts to grounds for appeal. So, in my view, his application is misplaced. Secondly, the applicant admitted that he filed an appeal in the High Court and that his appeal was dismissed. The applicant is back in the high court, I agree with the respondent that this court lacks the jurisdiction to hear the application, is the same court with the same jurisdiction, and that his only recourse is to appeal to the Court of Appeal. I find that the application lacks merit and his application is dismissed.

DATED, SIGNED, AND DELIVERED AT BUNGOMA THIS 2ND DAY OF NOVEMBER 2023. R.E. OUGOJUDGEIn the presence;Zablon Wafula/Applicant-For the RespondentC/A