[2019] KEHC 8977 (KLR)
The application for revision was dismissed because the applicant had already appealed the sentence to the High Court, which had rendered a decision. Under Section 364(5) of the Criminal Procedure Code, the High Court cannot review its own decision after an appeal has been determined; the proper recourse would have...
Source-derived case information.
- Citation
- [2019] KEHC 8977 (KLR)
- Parties
- Applicant: James Kinegeni Basilio; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Chuka
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 129 of 2018
- Procedural Posture
- Criminal Revision / Ruling on Notice of Motion for Sentence Review
- Outcome
- application dismissed
- Judges
- BB Limo
- Legal Topics
- Manslaughter, Sentencing Principles, Criminal Revision, Appeal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Kinegeni Basilio
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Notice of Motion for Sentence Review
Legal Issues
- 1 Whether the High Court can review a sentence after an appeal on the same sentence has already been determined.
- 2 Whether the applicant is entitled to a non-custodial sentence based on mitigation and post-conviction conduct.
Ratio Decidendi
The application for revision was dismissed because the applicant had already appealed the sentence to the High Court, which had rendered a decision. Under Section 364(5) of the Criminal Procedure Code, the High Court cannot review its own decision after an appeal has been determined; the proper recourse would have been to appeal to the Court of Appeal. Additionally, the trial court exercised its discretion appropriately by imposing a sentence of six years' imprisonment, which was lenient compared to the maximum sentence of life imprisonment for manslaughter. The applicant's mitigation and post-conviction conduct, while commendable, do not provide a legal basis for the High Court to...
Court Disposition
application dismissed
Orders
- The application for revision of sentence is disallowed.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT CHUKA
CRIMINAL REVISION NO.129 OF 2018
JAMES KINEGENI BASILIO...................APPLICANT
VERSUS
REPUBLIC.............................................RESPONDENT
(From original conviction and sentence in Criminal Case No. 114 of 2015 of the Principal Magistrate's Court at Chuka).
R U L I N G
1. JAMES KINEGENI BASILIO, the applicant herein was charged with the offence of manslaughter contrary to Section 202 as read with Section 205 of the Penal Code vide Chuka Principal Magistrate's Court Criminal Case No. 114/2015 .
The particulars were that on 1st February, 2015 at Ncharichu village, Ikuu Sub-location, Tharaka Nithi County he unlawfully killed Justus Munene Mukindia. The record of proceedings from the court below show that the applicant pleaded guilty to the offence and was convicted on own pleaded and sentenced to serve 6 years imprisonment.
2. It is also apparent that the applicant did prefer an appeal against the sentence in this court vide Chuka HCCR Appeal No. 1 of 2015. The appeal was disallowed by this court on 17th March, 2016.
3. The applicant has now moved this court through a Notice of Motion dated 11th July, 2018 asking for a reversal of the sentence meted out against him on the following grounds:-
(i) That he was a first offender.
(ii) That he was intoxicated when he committed the offence.
(iii) That he is a breadwinner of his family.
(iv) That he has since reformed and transformed.
(v) That he should be considered for non-custodial sentence.
4. This court has considered this application and the grounds upon which it has been made. I have noted a favourable report from the correctional facility where the applicant serves his sentence. It is commendable that the applicant has learnt useful skills in prison that will endear him well once he gets back to the community and the society at large. However it is clear that this application contravenes the law and in particular Section 364(5)of the Criminal Procedure Code. The applicant preferred an appeal and this court rendered itself on the appeal. The applicant cannot come back to the same court for a review because if he was dissatisfied with this court's decision on his appeal, he should have appealed against it in the Court of Appeal.
This application is therefore improper and furthermore I find that the trial court duly exercised its discretion under Section 26(2) of the Penal Code in handing 6 years imprisonment instead of life imprisonment which is the maximum sentence provided under Section 205 of the Penal Code.
The applicant is therefore best advised to continue with the transformation and continue acquiring other useful skills to help him be useful to himself, his family and the society at large once he finishes his term of imprisonment. For now this application for the aforestated reasons is disallowed.
Dated, signed and delivered at Chuka this 29th day of January, 2019.
R. K. LIMO
JUDGE
29/1/2019
Ruling signed, dated and delivered in the pen court in presence of applicant in person and Momanyi for State/Respondent
R.K. LIMO
JUDGE
29/1/2019