[2021] KEHC 7907 (KLR)
The court held that the applicant's request for resentencing under Section 333(2) of the Criminal Procedure Code could not be entertained because the applicant had already exercised his right of appeal, and the Kisumu High Court had reviewed and determined both conviction and sentence. The Siaya High Court lacked...
Source-derived case information.
- Citation
- [2021] KEHC 7907 (KLR)
- Parties
- Applicant: Hezron Ogola Odhiambo; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E058 of 2021
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Resentencing Application
- Outcome
- application dismissed
- Judges
- RE Aburili
- Legal Topics
- Resentencing, Computation of Sentence, Jurisdiction of High Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Hezron Ogola Odhiambo
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Resentencing Application
Legal Issues
- 1 Whether the applicant is entitled to have his sentence computed from the date of arrest under Section 333(2) of the Criminal Procedure Code.
- 2 Whether the High Court at Siaya has jurisdiction to entertain the application after the conviction and sentence were affirmed and reviewed by the Kisumu High Court.
Ratio Decidendi
The court held that the applicant's request for resentencing under Section 333(2) of the Criminal Procedure Code could not be entertained because the applicant had already exercised his right of appeal, and the Kisumu High Court had reviewed and determined both conviction and sentence. The Siaya High Court lacked jurisdiction to revisit or alter the sentence as the matter had been conclusively adjudicated by a court of competent jurisdiction. Entertaining the application would amount to forum shopping and undermine the finality of appellate decisions.
Court Disposition
application dismissed
Orders
- The application is dismissed.
- This ruling to be sent to Kisumu High Court CRA No. 39 of 2019 for noting.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT SIAYA
MISC. CRIMINAL APPLICATION NO. E058 OF 2021
CORAM. R.E. ABURILI, J
HEZRON OGOLA ODHIAMBO................................................................APPLICANT
VERSUS
REPUBLIC..................................................................................................RESPONDENT
(Being an Application seeking Resentence in Criminal Case No. 481 of 2014
at Maseno SPM’s Court by Hon. B. Ochieng, Ag. SPM on 06/03/2015) AND
(An Appeal in Criminal Appeal No. 39 of 2015 at Kisumu High Court
by Hon. Justice D. Majanja J. on 27/10/2016)
RULING
1. The Applicant Hezron Ogola Odhiambo was convicted of the offences of rape and malicious damage to property in Maseno SPM’s court in Cr. Case No. 481 of 2014. He was aggrieved by the said conviction and sentence and filed an appeal to Kisumu High Court vide Criminal Appeal No. 39/2015 which appeal was determined by Majanja J vide his judgment dated 27/10/2016 wherein the learned Judge dismissed the appeal against conviction but reviewed sentence to 10 years imprisonment.
2. The Applicant/convict filed his application before this court on 23/3/2021 seeking that this court invokes Section 333(2) of the Criminal Procedure Code and orders that his sentence should run from date of his arrest on 1st or 2nd May 2014 not date of conviction and sentence.
3. I have considered the application and supporting affidavit. I decline to entertain it wholly as the applicant has had an opportunity to have his sentence reduced on appeal by a court of competent jurisdiction and in addition, he cannot be heard before this court yet his conviction and appeal were concluded before a court of competent jurisdiction in a different jurisdiction. The applicant convict is no doubt mischievous
4. The application is dismissed.
5. This ruling to be sent to Kisumu High Court CRA No. 39 of 2019 for noting.
6. File closed.
7. Orders accordingly.
DATED, SIGNED AND DELIVERED AT SIAYA, THIS 1ST DAY OF APRIL 2021
R.E. ABURILI
JUDGE