Amunze v Republic (Miscellaneous Application E026 of 2023) [2024] KEHC 7262 (KLR) (1 March 2024) (Ruling)
Neutral citation:
[2024] KEHC 7262 (KLR)
Republic of Kenya
Miscellaneous Application E026 of 2023
PJO Otieno, J
March 1, 2024
IN THE MATTER OF ARTICLES 2, 3(a), 19(2), 20(1), 22 (1), 23(1), 25(c), 26(1), 27(1)(4),28,50(2)(p),159(2) AND 165(3) OF THE CONSTITUTION OF KENYA
AND
IN THE MATTER OF THE CONSTITUTION OF KENYA (PROTECTION OF RIGHTS FUNDAMENTAL FREEDOMS) PRACTICE AND PROCEDURE RULES, 2010ANDIN THE MATTER OF PETITION NO. E017 OF 2021 PHILIP MUEKE MAINGI & 5 OTHERS VS DPP AT MACHAKOS
AND
IN THE MATTER OF SECTION 8(1) AS READ WITH SECTION 8(2) OF THE SEXUAL OFFENCES ACT
AND
IN THE MATTER OF SECYION 333(2) OF THE CRIMINAL PROCEDURE CODE CAP 75 LAWS OF KENYA
Between
Anthony Amunze
Applicant
and
Republic
Respondent
Ruling
1.Before the court is the applicant’s undated chamber summons application filed in court on 7/6/2023 seeking a review of his life sentence meted in Criminal Case No. 17 of 2012 and affirmed by both High Court and Court of Appeal. He seeks that he be awarded a lenient definite sentence under article 50(2)(p)(q) of the Constitution of Kenya. He further prays that this court invokes the provisions of section 333(2) of the Criminal Procedure and takes into account the time he has spent in custody.
2.The application is supported by the affidavit of Antony Amunze and another document titled application in which he avers that he was charged with the offence of defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act No. 3 of 2006 in Criminal Case No. 17 of 2012. He filed an appeal in the High Court at Kakamega, HCCRA No. 203 of 2013 against his conviction and sentencing which appeal was dismissed. He filed a second appeal in the Court of Appeal vide Kisumu Criminal Appeal No. 147 of 2016 which appeal was also dismissed with the court stating that he was not barred from seeking resentencing. He argues that the high court has competent jurisdiction to hear and determine the subject application under article 165(3)(b) of the Constitution of Kenya, 2010.
3.Ms. Osoro for the respondent is not opposed to the application and urged the court to abide by the Court of Appeal directions that the applicant was at liberty to pursue a review in the appropriate court. Counsel equally argued that since life imprisonment was rendered unconstitutional by the Court of Appeal, this court has the requisite jurisdiction to entertain the subject application and resentence the applicant.
4.From the application and the response thereto, the issue that arises for my determination is whether court should consider revising the sentence the applicant continues to serve.
5.Following and developing the Muruatetu directions on 6th July, 20211, there have been further recent developments on the law on the legitimacy of life imprisonment with the Court of Appeal sitting at Malindi in Criminal Appeal No. 12 of 2021 Julius Kitsao Manyeso v Republic holding as follows;
6.With the court of appeal establishing that life imprisonment amounts to a violation of a convict’s rights to human dignity as espoused under article 28 of the Constitution, this court is empowered by article 23(1) and 165(3)(b) of the Constitution to hear and determine applications on the violations of fundamental rights and freedoms. That jurisdiction was emphasized by the Supreme Court in the case of Jasbir Singh Rai & 3 others v Tarlochan Singh Rai Estate & 4 others [2013] eKLR where it was held as follows;
7.Guided by the decision of the Court of Appeal in Julius Kitsao Manyeso v Republic (supra) which binds upon this court, it is my finding that the sentence of life imprisonment meted on the applicant is unconstitutional and a contravention of the Constitution and cannot be left to stand. It is set aside and the court is then bound to impose an appropriate sentence.
8.In executing the duty to resentence, the court notes that the victim of the applicant was 11 years old. She narrated how the applicant defiled her by holding her neck which left as at the time of giving her testimony, faded scars on the neck as reminders of the attack by the applicant. After the act, with no remorse, the applicant just left her in the house he had taken her and left with her books because she was attacked on her way from school. That depicts the applicant as a very cruel and heartless human being who deserves retribution and deterrence as an expression of disapproval of the beastly acts. The court notes he has been in custody since 8.11.2013.
9.From the proceedings on the record, the pages on the mitigation appear to be missing. Nonetheless, from the judgment of the trial court the mitigation offered by the applicant was that he was a family man and that he had two children one of whom being aged two months and that he needed to be present and not kept away from the young children.
10.There was no show before the trial court of remorse by the applicant. For that reason in re-sentencing, the court sets aside the life imprisonment term and in its place substituted an imprisonment term of twenty-five (25) years computed from the date of his conviction and sentence because he was tried while on bond.
11.Having being on bond pending trial, section 333 (2) Criminal Procedure Code has no beneficial application to him. It is so ordered.
DATED, SIGNED AND DELIVERED AT KAKAMEGA THIS 1ST DAY OF MARCH, 2024.PATRICK J. O. OTIENOJUDGEIn the presence of:Ms. Chala for the Prosecution/RespondentApplicant in personCourt Assistant: Polycap Mukabwa