[2020] KEHC 3849 (KLR)
The court found that the petition did not meet the threshold for a constitutional petition as there was no allegation or evidence of violation of the petitioner's constitutional rights. The sentence of 10 years for manslaughter was within the lawful range, considering the maximum penalty is life imprisonment. The...
Source-derived case information.
- Citation
- [2020] KEHC 3849 (KLR)
- Parties
- Petitioner: David Otieno Omolo; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Constitutional Petition 10 of 2020
- Procedural Posture
- Constitutional Petition / Judgment
- Outcome
- petition dismissed
- Judges
- RE Aburili
- Legal Topics
- Manslaughter Sentencing, Sentence Reduction, Constitutional Petition Threshold
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
David Otieno Omolo
Petitioner
Republic
Respondent
Procedural Posture
Constitutional Petition / Judgment
Legal Issues
- 1 Whether the petition meets the threshold for a constitutional petition.
- 2 Whether the sentence imposed was unlawful or unconstitutional.
- 3 Whether the High Court has jurisdiction to interfere with the sentence in the absence of an appeal or proper revision application.
Ratio Decidendi
The court found that the petition did not meet the threshold for a constitutional petition as there was no allegation or evidence of violation of the petitioner's constitutional rights. The sentence of 10 years for manslaughter was within the lawful range, considering the maximum penalty is life imprisonment. The court further held that sentencing is within the discretion of the trial court, and since the petitioner was not given a mandatory sentence, there was no basis for a claim of unconstitutionality. Additionally, the High Court has no jurisdiction to interfere with a lawful sentence in the absence of an appeal or a proper application for sentence revision. The petition was therefore...
Court Disposition
petition dismissed
Orders
- The petition is dismissed as misconceived, frivolous, vexatious, and an abuse of the court process.
- This file is closed.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT SIAYA
CONSTITUTIONAL PETITION NO. 10 OF 2020
DAVID OTIENO OMOLO...........................PETITIONER
VERSUS
REPUBLIC................................................RESPONDENT
(Being a Petition for sentence reduction in Criminal Case No. 1124 of 2018 at Principal Magistrate’s Court Bondo in a judgment dated 30/8/2019)
JUDGMENT
1. The Petitioner herein Daniel Otieno Omollo was charged with the offence of Manslaughter contrary to Section 202 as read with Section 205 of the Penal Code. He pleaded not guilty. He was found guilty, convicted and sentenced to serve 10 years imprisonment by the Principal Magistrate, Bondo on 30/8/2019 in Bondo PM Cr. Case No. 1124/2018. He claims that he appealed but withdrew the said appeal.
2. In this petition filed on 29/6/2020 the Petitioner/convict seeks for non-custodial sentence and he further prays for reduction of sentence claiming that he is suffering a lot.
3. The Prosecution/Respondent opposes the application and urges the court to dismiss the petition.
4. I have considered the petition filed by the convict and the argument in favour of and against the petition.
5. First and foremost, the petition which is couched to be a constitutional petition does not meet the threshold for a constitutional petition. There is no allegation of violation of the rights of the accused/convict as the sentence of 10 years imprisonment as imposed upon the convict for the offence of Manslaughter is lawful sentence, considering the maximum is life imprisonment.
6. Secondly, sentencing is in the discretion of the trial court and as the Petitioner was not handed mandatory sentence, there can be no claim of unconstitutionality of the sentence imposed.
7. Thirdly, this court has no power to interfere with lawful sentence imposed on the convict who has not appealed. The petition is not sentence revision as contemplated under sections 362 and 364 of the Criminal Procedure Code as read with Article 165(6) and (7) of the Constitution which empower this court to call for records of a court or body subordinate to it, examine them and make appropriate orders to ensure the fair administration of justice.
8. For the above reasons, I find and hold that this petition is misconceived, frivolous, vexatious and an abuse of the court process. The same is found to be devoid of merit. It is accordingly dismissed. This file is closed.
9. Orders accordingly.
Dated, signed and Delivered at Siaya this 27th Day of July 2020
R.E. ABURILI
JUDGE
In the presence of:
The Petitioner in person virtually as he is in Prison
Mr. Okachi Senior Principal Prosecution Counsel in Court for the Respondent State
CA: Brenda and Modestar