[2021] KEHC 5266 (KLR)
The court held that it lacks jurisdiction to further review a sentence that has already been reduced on appeal. The applicant's offence of manslaughter carries a maximum sentence of life imprisonment, and the Community Service Orders Act only applies to offences punishable by up to three years imprisonment. The...
Source-derived case information.
- Citation
- [2021] KEHC 5266 (KLR)
- Parties
- Applicant: David Odhiambo Omolo; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision E065 of 2021
- Procedural Posture
- Criminal Revision / Ruling on Application for Revision of Sentence
- Outcome
- application dismissed
- Judges
- RE Aburili
- Legal Topics
- Manslaughter, Sentence Revision, Probation Report, Community Service Order, Jurisdiction of High Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
David Odhiambo Omolo
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Application for Revision of Sentence
Legal Issues
- 1 Whether the High Court has jurisdiction to further review a sentence already reduced on appeal.
- 2 Whether the applicant qualifies for a non-custodial sentence under the Community Service Orders Act given the offence of manslaughter.
Ratio Decidendi
The court held that it lacks jurisdiction to further review a sentence that has already been reduced on appeal. The applicant's offence of manslaughter carries a maximum sentence of life imprisonment, and the Community Service Orders Act only applies to offences punishable by up to three years imprisonment. The court found the probation report recommending a non-custodial sentence to be a mockery of justice and the legal process, and dismissed the application for sentence revision as lacking merit and legality.
Court Disposition
application dismissed
Orders
- The application for revision of sentence is declined and dismissed.
- File closed.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT SIAYA
CRIMINAL REVISION E065 OF 2021
DAVID ODHIAMBO OMOLO..............................................................................................APPLICANT
VERSUS
REPUBLIC..........................................................................................................................RESPONDENT
(Revision Application from the judgment, conviction and sentence in Bondo P.M’s Cr. C. 857 of 2013
by Hon. C.A. Kutwa, KSM HCCRA 45of 2015, Siaya HCCRA 83 of 2015
dated 8. 5.2020, by Hon. J. Makau – J.)
RULING
1. The Convict David Odhiambo Omolo was convicted for the offence of Manslaughter contrary to section 202 as read with Section 205 of the Penal Code vide Bondo Principal Magistrate’s Court Criminal Case Number 857 of 2013 by Hon. C.A. Kutwa, P.M. He was sentenced to serve twenty years imprisonment on 4. 12. 2014. He appealed vide Kisumu HCCRA 45 of 2015 which was transferred to Siaya High Court and vide Siaya HCCRA 83 of 2015 Hon. J. Makau – J., the appeal against conviction was dismissed and sentence reduced from 20 years imprisonment to 10 years imprisonment vide judgment delivered on 15. 3.2016.
2. The Convict has not challenged that decision. He is now before this court for Revision of Sentence and the Probation Officer’s Report filed on 11. 6.2021 by Euphemia Kidwoli says that he is remorseful and willing to serve non-custodial sentence.
3. In the view of this court, the probation report is a mockery of justice and legal process. This court in a merit appeal reduced prison term imposed on the convict from 20 years to ten (10) years. The court therefore lacks jurisdiction to further review that sentence by whatever name the application or request is given.
4. Prison decongestion under Section 3(1) of the Community Service Order is only applicable where the offence charged or for which upon conviction, the convict is liable to imprisonment up to three years imprisonment. The punishment for Manslaughter is up to life imprisonment. The trial Court exercised discretion and sentenced the Convict to 20 years which term was further reduced by this court Hon. Justice Makau – J. to ten years imprisonment. That being the case, I find no merit or legality in this matter returning to this court for sentence Review.
5. The request is declined and dismissed.
6. Filed Closed.
7. Orders accordingly.
DATED, SIGNED AND DELIVERED AT SIAYA THIS 30TH DAY OF JUNE, 2021
R.E. ABURILI
JUDGE