Case ID:180542

Mwatela Chuphi Rumba v Director of Public Prosecution [2021] eKLR

Case Metadata

Case Number:

Petition E025 of 2021

Parties:

Mwatela Chuphi Rumba v Director of Public Prosecution

Date Delivered:

30 Jul 2021

Case Class:

Criminal

Court:

High Court at Malindi

Case Action:

Ruling

Judge(s):

Reuben Nyambati Nyakundi

Citation:

Mwatela Chuphi Rumba v Director of Public Prosecution [2021] eKLR

Advocates:

Mr Mwangi for the State

Case History:

(From Resentencing Petition No.541 of 2014 in Mariakani Hon. N. S. Lutta – SPM and HCCR No.147 of 2015 Mombasa)

Court Division:

Criminal

County:

Kilifi

Advocates:

Mr Mwangi for the State

History Docket No:

Petition No.541 of 2014 & HCCR No.147 of 2015 Mombasa)

History Magistrate:

Hon Lady Justice A.Ongeri

Hon. N. S. Lutta - SPM

History County:

Kilifi

Case Outcome:

Petition dismissed

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MALINDI

PETITION NO. E025 OF 2021

(From Resentencing Petition No.541 OF 2014 in Mariakani

Hon. N. S. Lutta – SPM and HCCR No.147 of 2015 Mombasa)

IN THE MATTER OF REVIEW OF SENTENCE IN THE MATTER OF

ARTICLE 22 (1),

23(1), 25(C), 27, 48, 50 (2) (P), 165 (3), 258 (1) OF THE CONSTITUTION

AND

IN THE MATTER OF SECTIONS 165 (3) AND 258 (1), 259 (1) OF THE CONSTITUTION

AND

IN THE MATTER OF SECTION 8 (1) AS READ WITH 8 (4) OF THE SEXUAL OFFENCES ACT NO. 3 OF 2006.

MWATELA CHUPHI RUMBA............................................................................PETITIONER

VERSUS

DIRECTOR OF PUBLIC PROSECUTION.....................................................RESPONDENT

CORAM: Hon. Justice R. Nyakundi

Mwatela Chuphi Rumba

– Petitioner

Mr Mwangi for the state

R U L I N G

The Petitioner filed a Petition dated 31.3.2021 pursuant to the original proceedings in Criminal Case NO. 541 of 2014 at Mombasa. He was sentenced to 15 years imprisonment for the offence of defilement contrary to 8 (1) as read with section 8 (4) of the Sexual Offences Act. Being aggrieved with the decision on both conviction and sentence he preferred an appeal to the High Court before the session judge her Ladyship A.Ongeri who considered the matter wholly and ruled that the appeal lacks merit with regard to the issues raised in the Memorandum of Appeal. The gist of the Petition is for this court to revisit the issue on review of sentence.

Determination

Limited jurisdiction has been granted to the High Court in terms of Article 50 (2) (P), & (Q) (6) (a) & (b) of the Constitution in pertinent circumstances to render a decision on review of sentence which has been imposed against a convicted petitioner. In contrast to the traditional discretion to pass sentence after a finding of facts on review, there must be compelling and exceptional circumstances to tilt the scale of the order. It should be recalled that since the advent of the dicta by the Supreme Court in

Francis K.Muratetu V R [2017]eKLR

mandatory sentences have faced constitutional challenges on the basis of which many convicts in this respect moved various Courts to review the imposed sentences.

Apparently each of the convicts entertains this feeling that mandatory sentences are unconstitutional and gross violations of their fundamental rights. I am of the view that the Court should approach the task cautiously since the legislature has already provided for the prescribed sentences for the offences in question, unless there are or can be seen from the record truly new and compelling reasons likely to produce different results of the original sentence.

In the case of

Fatuma Hassan Salo V R [2009]eKLR

the court held that;-

“

In sentencing the offender the guiding factors should be the evidence showed legal principles and all other relevant factors when it comes to apportioning a definitive sentence for the offence.”

The Court is also required to consider both mitigation and aggravating factors before arriving at a decision. Therefore the circumstances in which the crime was committed are undoubtedly within the purview of the trial court and also consideration of the merits of an appeal. There are therefore two approaches between the sentencing verdict and the trial court and a more structured one on review. Evidently, under review the court operates within narrower bounds to inform the new circumstances to occasion interference with the order on sentence. It is clear that at the trial, the dimension to the extent of age, seriousness of the offence, personal circumstances, previous convictions and other considered factors have been reflected in the sentence imposed against the petitioner. The justification for interference should be on proof of substantial and compelling circumstances, or material. The prior judgment of conviction and sentence are conclusive upon all questions of fact or of law distinctly put in issue and directly determined upon the trial of the former indictment.

In the instant petition after evaluation and examination of the petition I find no features on compelling and extraordinary circumstances to warrant this Court to vary or interfere with the 15 years imprisonment. This means that the Petition lacks merit. I declare and affirm the verdict on sentence as imposed by the trial court and further crystalized by the High Court.

DATED, SIGNED AND DELIVERED AT MALINDI THIS 30

TH

DAY OF JULY, 2021

..........................

R. NYAKUNDI

JUDGE

In the presence of:

1. Mwatela Chuphi Rumba – Petitioner

2. Mr Mwangi for the state