[2021] KEHC 6506 (KLR)
The court held that the applicant, by seeking a review of his sentence at the High Court while simultaneously pursuing an appeal at the Court of Appeal on the same conviction and sentence, was guilty of an abuse of the court process. Entertaining both proceedings could result in inconsistent decisions and undermine...
Source-derived case information.
- Citation
- [2021] KEHC 6506 (KLR)
- Parties
- Applicant: Evans Onyango Momanyi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 6 of 2020
- Procedural Posture
- Miscellaneous Application / Judgment
- Outcome
- application struck out as abuse of process
- Legal Topics
- Defilement Offence, Sentence Review, Abuse of Process
- 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 Onyango Momanyi
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Application / Judgment
Legal Issues
- 1 Whether the High Court can review a sentence when an appeal on the same conviction and sentence is pending before the Court of Appeal.
- 2 Whether pursuing a review at the High Court while an appeal is pending at the Court of Appeal constitutes an abuse of court process.
Ratio Decidendi
The court held that the applicant, by seeking a review of his sentence at the High Court while simultaneously pursuing an appeal at the Court of Appeal on the same conviction and sentence, was guilty of an abuse of the court process. Entertaining both proceedings could result in inconsistent decisions and undermine the integrity of the justice system. The proper course was for the applicant to pursue his appeal to finality or withdraw it before seeking any further relief. Accordingly, the application for review was struck out to prevent the risk of conflicting outcomes and to uphold the orderly administration of justice.
Court Disposition
application struck out as abuse of process
Orders
- The application for review of sentence is struck out.
- The applicant is advised to pursue the pending appeal at the Court of Appeal to finality or withdraw it before seeking further relief.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISUMU
MISC. CRIMINAL APPPL. NO. 6 OF 2020
EVANS ONYANGO MOMANYI ......... APPLICANT
-VERSUS-
REPUBLIC ......................................... RESPONDENT
JUDGMENT
The Applicant, EVANS ONYANGO MOMANYI, lodged his current Petition at the High Court, seeking a review of the sentence which was handed down by the trial court.
1. He was convicted for the offence of Defilement and was sentenced to 20 Years imprisonment.
2. Following his conviction, the Applicant lodged an appeal at the High Court, challenging both the conviction and the sentence.
3. On 7th February 2018 Majanja J. dismissed the appeal and affirmed both the conviction and the sentence.
4. The Applicant has now approached this court to intervene and award a less severe sentence, after taking into account the reforms which he had undergone from the time he was incarcerated.
5. Whilst I was in the process of perusing all the material which the Applicant had placed before me, I chanced upon the Record of Appeal in respect to Criminal Appeal No. 9B of 2017, which was determined by Majanja J.
6. On the front page of the said Record of Appeal, I noted the following hand-written statement;
“COA CRA 21/2018”
7. Being aware that the initials “COA”ordinarily is used to refer to the Court of Appeal, I got in touch with the learned Deputy Registrar of that court.
8. After making some inquiries, Hon. J. Wambilyanga informed me that the Applicant had filed Criminal Appeal No. 21 of 2018, at the Court of Appeal.
9. The information made available to me shows that on 26th October 2020, the learned Deputy Registrar had conducted Case Management for the pending appeal.
10. The appeal has now been certified as being ready for hearing. In the said circumstances, it shows that the Applicant currently has an appeal which is pending at the Court of Appeal, whilst he was simultaneously canvassing an application for the review of the sentence that had been handed down by the trial court.
11. The record of the proceedings at the Case Management on 26th October 2020 shows that the Applicant was present on that day. Therefore, he was fully aware of the fact that his appeal was still pending.
12. I hold the considered view that by pursuing the review of the sentence at the High Court, whilst simultaneously canvassing an appeal at the Court of Appeal, the Applicant was guilty of an abuse of the Court process. I so hold because it is conceiveable that the 2 courts could come up with inconsistent determinations, and thus bring the justice system into disrepute.
13. As the appeal was filed first-in-time, the Applicant ought to canvass it to finality, unless he chooses to have it withdrawn.
14. In order to ensure that there is no risk of the two courts making decisions that may be inconsistent, I do hereby strike-out the application before me.
15. As I conclude this judgment, I wish to caution inmates against filing more applications or petitions when they still had a pending case or pending appeal which arose from the same facts and trial.
DATED, SIGNED AND DELIVERED AT KISUMU THIS 27TH DAY OF MAY 2021
FRED A. OCHIENG
JUDGE