Charles Musau Mang'eli v Republic

5. Being dissatisfied with the High Court judgment, the Applicant filed a second Appeal to the Court of Appeal at Nairobi in Criminal Appeal No. 103 of 2020. After hearing of the second Appeal the Court of Appeal was satisfied that the offence of defilement was proved and that the Applicant defiled CMM (name withheld). On 24th November 2023, the Court of Appeal dismissed the appeal against the conviction and sentencesave that the sentence of 30 years imprisonment was set aside and instead the life sentence imposed by the trial court was reinstated. Applicant’s Application 6. The Applicant has thus filed a Notice of Motion dated 4th June 2024 and supporting affidavit attached thereto dated 4th June, 2024. The application is brought under Article 165 (6) of the Constitution 2010 and Rule 21 of the Practice and Procedures in the High Court Rules 2021. The Applicant seeks for re-sentencing of his sentence to a lenient sentence bearing in mind the Applicant is over 72 years, weak and sickly. 7. The Respondent/State did not file a response to the application but instead requested that the Trial Court, the High Court Appeal and the Court of Appeal judgments be availed to the court and to them for perusal and consideration on the Applicant’s application herein. 8. A look at the record shows that only copies of the High Court Criminal Appeal No. 44 of 2019 and the Court of Appeal No.103 of 2020 judgement were availed to court. Submissions 9. The application was directed to be canvassed by way of written submissions. Both parties complied, the applicant’s submissions are dated 17/10/2024 whilst the Respondent’s submissions are dated 19/11/2024. 10. The Applicant was explicit that the review is confined to the sentence imposed on him, and that it is premised on the grounds and mitigating factors set out in his application. The applicant also relied on the Judiciary Sentencing Policy Guidelines as to the objectives of sentencing and the various decisions cited by him. He stressed the assertion that he is a first offender and has never been previously charged before any court in Kenya. He invited the court to take into consideration that he has engaged in rehabilitative programs while in prison which have reformed him and improved his overall character. He attached copies of the Certificates he has so far attained while in prison. The Court should also take into consideration the time already spent in custody from the date of his arrest and now as enough retribution. 11. Learned counsel for the Respondent, Ms. Agatha Abang, opposed the application. In her submissions, she confirmed that the Applicant was charged with the offence of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act; that upon conviction he was sentenced to life imprisonment; that he appealed against conviction and sentence to the High Cort and the sentence was reduced to 40 years imprisonment. Thereafter he filed a second appeal to the Court of Appeal which reinstated the trial court’s sentence of life imprisonment. Analysis and Determination 12. I have given careful consideration to the application and the parties’ rival submissions thereto. 13. Accordingly, I have perused the appeal judgments before this court in Machakos High Court Appeal No. 44 of 2019 and the Court of Appeal No.103 of 2020. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14349/eng@2025-05-21 2

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14. The Applicant seeks a review of his sentence. He was convicted for the offence of defilement contrary to Section 8(1) as read with Section 8 (2) of the SOA and sentenced to life imprisonment. 15. He appealed in HCRA. No. 44 of 2019 and on 29/01/2020 and Judge D.K. Kemei reduced the life sentence to 40 years imprisonment. He filed a second appeal to the Court of Appeal at Nairobi, and the sentence was reinstated to life imprisonment. He has now applied to this High Court seeking further review or resentencing. 16. It is my considered view that the Applicant has exhausted his Right of Appeal in the High Court and Court of Appeal. The Applicant’s resentencing was based on the Supreme Court decision in Francis Karioko Muruatetu and Other v. Rep. Petition 15 & 16 of 2015 which was erroneously applied to all cases including defilement case that the Supreme Court has clarified. The Muruatetu Case does not apply to all other cases. Having benefited from the Muruatetu Case. The applicant can not come back to this court for another review because this court is functus officio. If he has any grievances, he can only move the Supreme Court. 17. For the above reason’s the application for review is unmerited and declined. 18. Orders accordingly. File closed. RULING WRITTEN, DATED & SIGNED AT MACHAKOS THIS 21ST MAY 2025 NOEL I. ADAGI JUDGE DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 21ST MAY 2025 In the presence of : In person - the Appellant Ms, Agatha - for Respondent Milly - Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14349/eng@2025-05-21 3

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