[2021] KEHC 13087 (KLR)
The High Court held that it lacks jurisdiction to review or revisit its own sentence in a criminal matter except in circumstances governed by the Supreme Court's Muruatetu decision, which was not applicable in this case. The applicant's arguments regarding deduction of time spent in custody and request for a...
Source-derived case information.
- Citation
- [2021] KEHC 13087 (KLR)
- Parties
- Applicant: George Kiarie Ngerere; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 52 of 2019
- Procedural Posture
- Criminal Revision / Ruling on Application for Review of Sentence
- Outcome
- application struck out as incompetent
- Judges
- CJ Kendagor
- Legal Topics
- Sentence Review, Jurisdiction of High Court, Manslaughter Conviction, Deduction of Custody Period
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
George Kiarie Ngerere
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Application for Review of Sentence
Legal Issues
- 1 Whether the High Court can review or revisit its own sentence in a criminal matter outside the scope of the Supreme Court's Muruatetu decision.
- 2 Whether the period spent in custody prior to sentencing should be deducted from the applicant's sentence in the circumstances of this case.
Ratio Decidendi
The High Court held that it lacks jurisdiction to review or revisit its own sentence in a criminal matter except in circumstances governed by the Supreme Court's Muruatetu decision, which was not applicable in this case. The applicant's arguments regarding deduction of time spent in custody and request for a non-custodial sentence had already been considered at the time of sentencing. The court emphasized that any challenge to the conviction or sentence should be pursued through an appeal to the Court of Appeal, not by way of review before the same judge. Consequently, the application was found to be incompetent and was struck out.
Court Disposition
application struck out as incompetent
Orders
- The application for review of sentence is struck out.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CRIMINAL DIVISION
CRIMINAL REVISION CASE NO. 52 OF 2019
LESIIT, J.
GEORGE KIARIE NGERERE...........................................APPLICANT
VERSUS
REPUBLIC.........................................................................RESPONDENT
(Being an application for review of sentence from the decision of this court (Lesiit, J) in High Court Criminal Case No. 26 of 2015 delivered on 19th July 2018)
RULING ON REVIEW
1. The Applicant filed a Notice of Motion filed on 28/2/19. The Motion does not set out what is being sought in the application but also refers to an affidavit sworn in support of the application.
2. I have seen the affidavit. It seems to set out factors that should be considered before sentencing. What catches my eye is the averment that the Applicant spent 3 years 6 months in custody and that that should be deducted from his sentence.
3. Ms Ogweno Learned Prosecution Counsel for the State brought the attention of the court to the fact that this court was the one which passed the sentence against the Applicant, which was the subject of the application. Counsel urged that all the matters raised by the Applicant were in fact considered by the court before passing sentence.
4. The Applicant was the accused before me in High Court Criminal Case No. 26/15. He faced a charge of murder contrary to section 203 of the Penal Code. After the trial, I convicted the Applicant of manslaughter and proceeded to sentence him to six years’ imprisonment, after taking mitigation from him.
5. In a poorly drafted application which does not invoke any law, nor spell out orders sought to be made, he has returned before me. If my understanding is right, he seems to seek to have his sentence re-visited by the court, expects a deduction of the term of sentence, and writes the court in his affidavit to give a non-custodial sentence.
6. The Applicant had a right of appeal against the conviction entered herein and also the sentence. It is not clear whether he filed any appeal to the Court of Appeal. That is where the issues raised in the affidavit and the Notice of Motion should be addressed.
7. No law allows a court to sit on appeal over its own decision. And in criminal cases, a court cannot meddle with an order in sentence it pronounced against an accused before it, except in cases governed by the Guiding Judgement of the Supreme Court in Muruatetu and Anor. Vs Republic Petition No. 15 of 2016. This case does not fall under the Muruatetu, supra, judgment.
8. The application is incompetent and cannot stand. The same is struck out accordingly.
DATED AT NAIROBI THIS 28TH DAY OF MAY, 2021.
LESIIT, J.
JUDGE
DATED, SIGNED AND DELIVERED THIS 29TH DAY OF JUNE, 2021.
BY
OGEMBO, D.O.
JUDGE
29/6/2021
Court
Ruling read out in court (on-line) in presence of the applicant (Nairobi West Prison) and Mr. Mutuma for the State.
OGEMBO, D.O.
JUDGE
29/6/2021