[2018] KEHC 2729 (KLR)
The court held that it lacked jurisdiction to review or revise the sentence in the absence of a constitutional petition alleging violation of rights. The application was found to be a disguised appeal against a decision of a court of concurrent jurisdiction, which is impermissible. Furthermore, the court found that...
Source-derived case information.
- Citation
- [2018] KEHC 2729 (KLR)
- Parties
- Applicant: Aggrey Ondego Adie; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 14 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Revision
- Outcome
- application dismissed
- Judges
- RE Aburili
- Legal Topics
- Revision of Sentence, Jurisdiction of High Court, Fundamental Rights Review
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Aggrey Ondego Adie
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Revision
Legal Issues
- 1 Whether the High Court has jurisdiction to review or revise a sentence where no constitutional petition for violation of rights is before it.
- 2 Whether serving a lawful sentence constitutes a violation of fundamental rights and freedoms.
Ratio Decidendi
The court held that it lacked jurisdiction to review or revise the sentence in the absence of a constitutional petition alleging violation of rights. The application was found to be a disguised appeal against a decision of a court of concurrent jurisdiction, which is impermissible. Furthermore, the court found that serving a lawful sentence does not constitute a violation of fundamental rights and freedoms. Consequently, the application for revision was dismissed and the applicant was ordered to complete his sentence.
Court Disposition
application dismissed
Orders
- The application for review of sentence is dismissed.
- The convict to complete the lawful sentence meted out on him in prison custody.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT SIAYA
SIAYA HC. MISC. APPL. NO. 14 OF 2017
(CORAM: R. E. ABURILI - J.)
AGGREY ONDEGO ADIE...............APPLICANT
VERSUS
REPUBLIC.....................................RESPONDENT
(Formerly Kisumu HC Cr. Misc. Appl. 32 of 2017)
(Original Criminal Case No. 859 of 2011 T Bondo)
RULING ON REVISION OF SENTENCE
The Applicant Aggrey Ondego Adie was convicted of the offence of attempted defilement and by the Bondo PM’s Court in Criminal Case No. 859/2011 at Bondo. He was sentenced to serve 10years imprisonment. He appealed vide Kisumu HCRA No. 57/2014 which appeal he says was dismissed. He now applies for review of sentence under Article 23(f) of the Constitution.
I have considered the Applicant/Convict’s application. He brings it under Article 23(f) of the Constitution. Article 23(f) of the Constitution is just one of the order that a court hearing a Petition for breach of or violation of fundamental rights and freedom guaranteed under Article 22 of the Constitution may grant. There is no petition before this court for redress of any right or freedom as stipulated in the Constitution.
The applicant is not alleging that by the conviction and sentence meted out on him by the trial court, or the appeal being discussed, his rights were violated. He is seeking in my view to appeal, in the name of Judicial Review, of the orders of the High Court, I am dismissing this appeal.
This court has no jurisdiction to sit on appeal of a court of concurrent jurisdiction.
The review is a camouflaged appeal.
In addition, serving of lawful sentence cannot be a violation of fundamental rights and freedoms of a convict / applicant.
Accordingly, I find the application not merited and I proceed to dismiss the same. The convict to complete the lawful sentence meted out on him in prison custody.
Orders accordingly.
Dated, Signed and Delivered at SIAYA this 30th Day of July 2018.
R.E. ABURILI
JUDGE