[2021] KEHC 5514 (KLR)
The High Court held that it had no jurisdiction to revise the sentence after having already determined an appeal on the same sentence, rendering it functus officio. The law does not permit both an appeal and a revision in the same matter. Furthermore, the offence of manslaughter carries a maximum sentence of life...
Source-derived case information.
- Citation
- [2021] KEHC 5514 (KLR)
- Parties
- Applicant: Alfred Odhiambo Achar; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision E035 of 2021
- Procedural Posture
- Criminal Revision / Ruling on Application for Revision of Sentence After Appeal Dismissed
- Outcome
- application dismissed
- Judges
- RE Aburili
- Legal Topics
- Manslaughter, Sentence Revision, Functus Officio, Community Service Orders, Appeal Dismissal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Alfred Odhiambo Achar
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Application for Revision of Sentence After Appeal Dismissed
Legal Issues
- 1 Whether the High Court can revise a sentence after it has already determined an appeal on the same sentence.
- 2 Whether the application for sentence revision is legally tenable under the Community Service Orders Act.
Ratio Decidendi
The High Court held that it had no jurisdiction to revise the sentence after having already determined an appeal on the same sentence, rendering it functus officio. The law does not permit both an appeal and a revision in the same matter. Furthermore, the offence of manslaughter carries a maximum sentence of life imprisonment, which excludes it from the purview of the Community Service Orders Act. The court found no legal basis or merit in the application for sentence revision and accordingly dismissed the request.
Court Disposition
application dismissed
Orders
- The request for revision of sentence is declined and dismissed.
- File closed.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT SIAYA
CRIMINAL REVISION NO. E035 OF 2021
CORAM: R.E. ABURILI, J
ALFRED ODHIAMBO ACHAR.........APPLICANT
VERSUS
REPUBLIC........................................RESPONDENT
(Being an Application for Revision of sentence against sentence in Bondo PM Court’s Criminal Case No. 114 of 2016 on 16/6/2017
by Hon. M.O. Obiero, Principal Magistrate AND Siaya HC Criminal Appeal No. 23 of 2018 dated 5/5/2020)
RULING
1. Alfred Odhiambo Ochar was convicted of the offence of Manslaughter contrary to Section 2020 as read with Section 205 of the Penal Code.
2. He was sentenced to serve 7 years imprisonment vide Bondo PM Cr. Case No. 114 of 2016. He appealed to this court vide HCRA 23/2018 which appeal was dismissed vide judgment delivered on 5/5/2020. He now seeks for revision of that sentence for prison decongestion.
3. I have considered the request through a Probation Officer’s Sentence Review Report. I find the application devoid of any legal basis and merit.
4. The law does not permit revision of sentence and an appeal, in the same matter.
5. This court is functus officio, having pronounced itself on appeal and cannot revise sentence through a revision or review exercise. The matter is outside purview of Section 3(1) of the Community Service Orders Act, considering that the maximum sentence for manslaughter is life imprisonment.
6. The discretion exercised by the trial court as upheld by this court on appeal cannot be subjected to a further revision in the circumstances of this case.
7. Accordingly, this request is declined and dismissed.
8. File closed.
9. Orders accordingly.
DATED, SIGNED AND DELIVERED AT SIAYA THIS 30TH DAY OF JUNE, 2021
R.E. ABURILI
JUDGE