[2023] KEHC 20570 (KLR)
The High Court lacks jurisdiction to revise or review sentences imposed by the Court of Appeal, as its revisionary powers under section 362 of the Criminal Procedure Code are confined to decisions of subordinate courts. Since the applicant's sentence of 25 years imprisonment was imposed by the Court of Appeal, any...
Source-derived case information.
- Citation
- [2023] KEHC 20570 (KLR)
- Parties
- Applicant: Oscar Ingotsi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E014 of 2022
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Revision of Sentence
- Outcome
- application dismissed for want of jurisdiction
- Judges
- WM Musyoka
- Legal Topics
- Sentence Revision, Jurisdiction of High Court, Application of Section 333 2 Cpc, Death Sentence Substitution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Oscar Ingotsi
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Application for Revision of Sentence
Legal Issues
- 1 Whether the High Court has jurisdiction to revise a sentence imposed by the Court of Appeal.
- 2 Whether section 333(2) of the Criminal Procedure Code should be applied to the applicant's substituted sentence of 25 years imprisonment.
Ratio Decidendi
The High Court lacks jurisdiction to revise or review sentences imposed by the Court of Appeal, as its revisionary powers under section 362 of the Criminal Procedure Code are confined to decisions of subordinate courts. Since the applicant's sentence of 25 years imprisonment was imposed by the Court of Appeal, any application for review or application of section 333(2) of the Criminal Procedure Code must be made before the Court of Appeal, not the High Court. The application for revision is therefore improperly before the High Court and must be dismissed for want of jurisdiction.
Court Disposition
application dismissed for want of jurisdiction
Orders
- The application dated February 23, 2022 is dismissed.
- The order shall also apply to Kakamega High Court Miscellaneous Criminal Application No E013 of 2022, Godfrey Shimonyo vs Republic.
Full Case Text
Judgment text and source record
22 paragraphs
Ingotsi v Republic (Miscellaneous Criminal Application E014 of 2022) [2023] KEHC 20570 (KLR) (21 July 2023) (Ruling)
Neutral citation: [2023] KEHC 20570 (KLR)
Republic of Kenya
In the High Court at Kakamega
Miscellaneous Criminal Application E014 of 2022
WM Musyoka, J
July 21, 2023
Between
Oscar Ingotsi
Applicant
and
Republic
Respondent
(Revision/review of sentence arising from orders made on 17th June 2009, in Kakamega SPMCCRC No. 140 of 2009 (Republic vs. Godfrey Shimonyo & Oscar Ingotsi), by Hon. Kimani Ndung’u, Principal Magistrate, PM)
Ruling
1. The applicant seeks that section 333(2) of the Criminal Procedure Code, Cap 75, Laws of Kenya, be reckoned in calculation of his sentence.
2. When the applicant was sentenced on June 17, 2009, section 333(2) could not be applied, as he had been sentenced to death, yet section 333(2) applies only to a fixed jail term. When the matter went to the High Court on appeal, in Kakamega HCCRA Nos 83 & 84 of 2009, the circumstances did not change, for his appeal was dismissed on February 23, 2011, the sentence imposed by the trial court was not interfered with.
3. At the Court of Appeal, in Kisumu CRA No 109 of 2016, the conviction was upheld, but the death sentence was set aside, and substituted with a sentence of 25 years imprisonment, in the judgment delivered on October 8, 2021. The Court of Appeal did not apply section 333(2) of the Criminal Procedure Code, to that imprisonment sentence. The instant proceedings were initiated after delivery of the said judgment.
4. The sentence imposed by the trial court can only be revisited on appeal or revision. Appeals were brought in this matter. The first was to the High Court, from the decision of the trial court. The High Court upheld the decision of the trial court. The second appeal was to the Court of Appeal, from the decision of the High Court. The Court of Appeal upheld the conviction, but interfered with the sentence, by substituting death with a term in jail.
5. Revision, under the Criminal Procedure Code, is a jurisdiction vested in the High Court, under section 362, with respect to decisions of subordinate courts. The revision, that I am being invited to make, is of a decision of the Court of Appeal. Hierarchically, the Court of Appeal is above the High Court, and there can be no occasion for the High Court to revisit a decision of the Court of Appeal, under any circumstances, with a view to revise it. The applicant should have sought review of the Court of Appeal order at that court, if jurisdiction exists for the same.
6. I have no jurisdiction to exercise discretion, with respect to section 333(2) of the Criminal Procedure Code, to the sentence that the Court of Appeal imposed, in its judgment of October 8, 2021. Consequently, the application of February 23, 2022 is improperly before me, and I hereby dismiss it. The order herein shall also apply to Kakamega High Court Miscellaneous Criminal Application No E013 of 2022, Godfrey Shimonyo vs Republic.
RULING DELIVERED, DATED AND SIGNED AT KAKAMEGA ON THIS………….……21ST………….….….DAY OF …………………..…………JULY………………..……….2023WM MUSYOKAJUDGEMr. Erick Zalo, Court Assistant.AppearancesOscar Ingotsi and Godfrey Shimonyo, in person.Ms. Kagai, instructed by the Director of Public Prosecutions, for the respondent.