[2021] KEHC 2519 (KLR)
The court dismissed the application on the basis that it lacked jurisdiction to further review a sentence already substituted by a judge of concurrent jurisdiction. Additionally, the applicant's failure to provide the necessary records, including the judgment substituting the death penalty and the trial court...
Source-derived case information.
- Citation
- [2021] KEHC 2519 (KLR)
- Parties
- Applicant: Evans Nyang’au Gadnar; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E019 of 2021
- Procedural Posture
- Miscellaneous Application / Judgment
- Outcome
- application dismissed
- Legal Topics
- Robbery With Violence, Sentencing Review, Death Penalty, Custodial Sentence, Sentence Substitution
- 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
Evans Nyang’au Gadnar
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Application / Judgment
Legal Issues
- 1 Whether the High Court can further review a sentence already substituted by a judge of concurrent jurisdiction.
- 2 Whether the period spent in custody during trial should be considered in the computation of the applicant's sentence.
Ratio Decidendi
The court dismissed the application on the basis that it lacked jurisdiction to further review a sentence already substituted by a judge of concurrent jurisdiction. Additionally, the applicant's failure to provide the necessary records, including the judgment substituting the death penalty and the trial court proceedings, meant the court could not verify the period spent in custody during trial. Without such verification, the court could not order that the 8 months allegedly spent in custody be considered in the computation of the applicant's sentence. The application was therefore found to have no legal basis and was dismissed in its entirety.
Court Disposition
application dismissed
Orders
- The application for review of sentence is dismissed.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KISUMU
MISC. CR. APPLICATION NO. E019 OF 2021
EVANS NYANG’AU GADNAR ………………..…….………… APPLICANT
-VERSUS-
REPUBLIC …………………………………………………… RESPONDENT
JUDGMENT
The Applicant, EVANS NYANG’AU GADNAR, has invoked Section 354of the Criminal Procedure Code, seeking a review of the sentence which was handed down to him.
1. He told this Court that he was convicted for the offence of Robbery with Violencecontrary to Section 296 (2)of the Penal Code. The trial court then sentenced him to suffer death as by law prescribed.
2. The Applicant told this Court that the death sentence was later “substituted”to 15 Years imprisonment.
3. He said that he had now spent 10 years in custody, since the time when he was arrested.
4. According to him, he had wasted his youthful days in jail, where he had stayed away from his parents and his family.
5. He requested the Court to order that the remaining duration of the sentence be served through a non-custodial sentence.
6. The Applicant also asked the Court to take into account the period of 8 months which he spent in custody, during the trial.
7. Although the Applicant was directed to file and serve the Judgment through which the High Court had substituted the death penalty with a sentence of 15 Years imprisonment, the Applicant failed to do so.
8. Secondly, the Applicant did not provide the Court or the Respondent with the record of the proceedings from the trial court.
9. In the absence of the proceedings from the trial court, this Court regrets that it is unable to verify the period, if any, that the Applicant spent in custody whilst he was still on trial. Accordingly, I am unable to order that 8 months be taken into account when the actual period of incarceration was being calculated by the Prison authorities.
10. I also find no basis in law for ordering that a sentence which had already been reviewed by another Judge of concurrent jurisdiction, be further reviewed.
11. In the result, the application is dismissed.
DATED, SIGNED and DELIVERED at KISUMUThis12thday of October2021
FRED A. OCHIENG
JUDGE