[2021] KEHC 1677 (KLR)
The court held that it was functus officio after delivering its judgment on 16/12/2020, having already considered and declined to apply Section 333(2) of the Criminal Procedure Code because the applicant was on bond during trial. Therefore, the application seeking review of the sentence was without merit and...
Source-derived case information.
- Citation
- [2021] KEHC 1677 (KLR)
- Parties
- Applicant: Brian Obura Oduor; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E119 of 2021
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Sentence Review
- Outcome
- application dismissed
- Judges
- RE Aburili
- Legal Topics
- Sentence Review, Application of Section 333 2 Cpc, Functus Officio, Gang Rape Conviction
- 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
Brian Obura Oduor
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Application for Sentence Review
Legal Issues
- 1 Whether the court can review its own judgment after dismissing the applicant's appeal against conviction and sentence.
- 2 Whether Section 333(2) of the Criminal Procedure Code applies to the applicant who was on bond during trial.
Ratio Decidendi
The court held that it was functus officio after delivering its judgment on 16/12/2020, having already considered and declined to apply Section 333(2) of the Criminal Procedure Code because the applicant was on bond during trial. Therefore, the application seeking review of the sentence was without merit and amounted to an abuse of court process. The court reaffirmed that it could not revisit its earlier decision or apply Section 333(2) in the applicant's circumstances.
Court Disposition
application dismissed
Orders
- The application for review of sentence is dismissed.
- File closed.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT SIAYA
MISC. CRIMINAL APPLICATION NO. E119 OF 2021
CORAM: R.E. ABURILI, J
BRIAN OBURA ODUOR........................................................APPLICANT
VERSUS
REPUBLIC..........................................................................RESPONDENT
(Being an Application arising from conviction and sentence of the Principal Magistrate’s court at Siaya in Sexual Offence Case No. 7 of 2019 and HCRA 5 OF 2020 )
RULING
1. The applicant Brian Obura Oduor was convicted of the offence of gang rape vide Siaya PM Sexual Offence Case No. 7/2019 on 7/8/2020 by Hon. L. Simiyu, Principal Magistrate. He was sentenced to serve 15 years imprisonment.
2. He appealed to this court vide HCCRA 5/2020 which appeal against conviction and sentence was dismissed by this court upholding the judgment and sentence imposed by the lower court.
3. In the said judgment rendered by this court on 16/12/2020, I made it clear that as the appellant was on bond during the trial, I declined to invoke the provisions of Section 333 (2) of the Criminal Procedure Code. I ordered that sentence would run from the date of sentencing in the lower court.
4. The applicant states that he has not appealed and that he owns up to his evil character but that he has reformed hence this court should consider reducing his sentence applying Section 333(2) of the Criminal Procedure Code in the interest of justice.
5. Having considered the application and called for and perused the Appeal file before this court, I find that the application seeks review of this court’s judgment. This court is functus officio the judgment of 16/12/2020. The Section 333(2)is inapplicable to the applicant convict who was on bond during trial which section this court referred to in its judgment aforesaid.
6. Accordingly, this application is found to be devoid of any merit and abuse of court process. It is hereby dismissed.
7. File closed. Orders accordingly,
DATED, SIGNED AND DELIVERED AT SIAYA THIS 16TH DAY OF NOVEMBER, 2021
R.E. ABURILI
JUDGE