Douglas James Mutuli v Republic

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MAKADARA CRIMINAL REVISION NO. E021 OF 2025 DOUGLAS JAMES MUTULI ...................................................................APPLICAN T VERSUS REPUBLIC ............................................................................... ...........RESPONDENT RULING This is an application for re-sentencing premised on section 363 and section 333(2) of the Criminal Procedure Code. The original records of the Lower Court file were not forthcoming in-spite of numerous reminders. The applicant filed two (2) similar applications for review being Milimani No. E1202/2024 and E007/2024. They were both consolidated and were to be mentioned together with E021/2025 Makadara. I have duly perused a letter dated 29th July, 2024 from the Commissioner General of Prisons which is to the effect that the accused was on 10th day of March, 2014 sentenced to twenty (20) years imprisonment for the offence of defilement contrary to section 8(1)(3) of the Sexual Offences Act No. 3 of 2006 in Criminal Case No. 4591 of 2011 Chief Magistrate’s Court in Makadara. He appealed against both conviction and sentence to the High Court in Criminal Appeal No. 42 of 2014 and his appeal was dismissed. He lodged an appeal No. 40 of 2017 before the Court of Appeal but withdrew same on 4th February, 2020 under Rule 68(4) of the Court of Appeal Rules. Section 333(2) of the Criminal Procedure Code would not be operative where the records of the Lower Court file are not available as the court has to ascertain whether the learned trial magistrate did indicate in the sentencing notes that the time taken while in custody was considered. The court has also to take into consideration whether the accused was out on bond or not. I decline to grant the application for review bearing in mind the High Court had dismissed his appeal on both his conviction and sentence. HIGH COURT CRIMINAL REVISION NO. E021 OF 2025 1

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