[2024] KEHC 9029 (KLR)
The High Court lacks jurisdiction to review or alter a sentence that has already been affirmed by the Court of Appeal, as it is bound by the hierarchy of courts and the doctrine of functus officio. The applicant's sentence of thirty years for defilement was considered by both the High Court and the Court of Appeal,...
Source-derived case information.
- Citation
- [2024] KEHC 9029 (KLR)
- Parties
- Applicant: Davis Masumbuo Baron; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Voi
- Jurisdiction
- Kenya
- Case Number
- Criminal Petition E086 of 2023
- Procedural Posture
- Criminal Petition / Ruling on Application for Review of Sentence
- Outcome
- application dismissed
- Judges
- GMA Dulu
- Legal Topics
- Sentence Review, Defilement Offence, Sexual Offences Act, Appellate Jurisdiction, Alternative Sentencing
- 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
Davis Masumbuo Baron
Applicant
Republic
Respondent
Procedural Posture
Criminal Petition / Ruling on Application for Review of Sentence
Legal Issues
- 1 Whether the High Court has jurisdiction to review a sentence already considered and affirmed by the Court of Appeal.
- 2 Whether the applicant is entitled to a reduction or alteration of his thirty-year sentence to a non-custodial sentence under the circumstances.
Ratio Decidendi
The High Court lacks jurisdiction to review or alter a sentence that has already been affirmed by the Court of Appeal, as it is bound by the hierarchy of courts and the doctrine of functus officio. The applicant's sentence of thirty years for defilement was considered by both the High Court and the Court of Appeal, with the latter specifically retaining the sentence despite observing that a life sentence could have been imposed. Without a legal basis or new circumstances falling within statutory exceptions, the High Court cannot intervene. The only available remedies for the applicant are to appeal to the Supreme Court or, when the remaining sentence is less than three years, to apply for...
Court Disposition
application dismissed
Orders
- The application for review of sentence is dismissed.
Full Case Text
Judgment text and source record
25 paragraphs
Baron v Republic (Criminal Petition E086 of 2023) [2024] KEHC 9029 (KLR) (9 July 2024) (Ruling)
Neutral citation: [2024] KEHC 9029 (KLR)
Republic of Kenya
In the High Court at Voi
Criminal Petition E086 of 2023
GMA Dulu, J
July 9, 2024
Between
Davis Masumbuo Baron
Applicant
and
Republic
Respondent
Ruling
1. Though this matter was brought to this court as a constitutional petition, it is actually an application for review of sentence imposed in Taveta Magistrate’s Criminal Case No. 214 of 2009.
2. In this application brought by way of Chamber Summons filed on 25th May 2023, the applicant seeks review of his thirty (30) years (prison) sentence imposed by the trial court in Taveta Criminal Case No. 214 of 2009, and relied on Article 50(2)(p)(q) of the Constitution.
3. In the supporting affidavit filed with the application, the applicant deponed that he had served more than half of his prison sentence and has a balance of only five (5) years imprisonment, and asks for the sentence to be reviewed to probation sentence.
4. The application was canvassed through written submissions. In this regard, I have perused and considered the submissions filed by the applicant as well as the submissions filed by the Director of Public Prosecutions.
5. Having considered the whole application, I note that the applicant was sentenced to thirty (30) years imprisonment on 12th November 2009 for defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act No. 3 of 2006.
6. He thereafter, appealed to this court and later to the Court of Appeal, and on 21st January 2022 the Court of Appeal dismissed his appeal.
7. I note also that in the Court of Appeal, the court noted that the applicant should infact have been lawfully sentenced to life imprisonment, but that since no notice for enhancement of sentence was issued, the Court of Appeal retained the sentence of thirty (30) years imprisonment.
8. In my view therefore, with the above substantive decision of the Court of Appeal on the sentence imposed herein, this court being lower in hierarchy cannot reconsider the sentence imposed. The applicant is infact lucky that the Court of Appeal did not enhance his sentence.
9. In my view, the only two options available to the applicant now are either to appeal to the Supreme Court, or to await until his prison sentence falls below three (3) years, and come to this court to consider whether to put him on alternative non-custodial sentence, subject to the sentence review report to be filed by the Probation Officer at that time.
10. As for the present application, it is not merited. I dismiss the application.
DATED, SIGNED AND DELIVERED THIS 9TH DAY OF JULY 2024 IN OPEN COURT AT VOI.GEORGE DULUJUDGEIn the presence of:-dAlfred/Trizah – Court AssistantsApplicantMr. Sirima for State