[2021] KEHC 5133 (KLR)
The High Court held that it lacks jurisdiction to further reduce the applicants' sentences after the Court of Appeal has already determined the matter, including the issue of sentencing. The court emphasized that the applicants had the opportunity to raise the issue of Section 333(2) of the Criminal Procedure Code...
Source-derived case information.
- Citation
- [2021] KEHC 5133 (KLR)
- Parties
- Applicant: James Musee Mwove; Applicant: Johnson Muthui Mutinda; Applicant: Peter Muthui Mutinda; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Garissa
- Jurisdiction
- Kenya
- Case Number
- Criminal Application 105 of 2019
- Procedural Posture
- Miscellaneous Application / Ruling on Post Appeal Sentence Reduction Application
- Outcome
- applications dismissed
- Judges
- A Ali-Aroni
- Legal Topics
- Robbery With Violence, Sentencing, Appeals Process, Section 333 2 Criminal Procedure Code
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Musee Mwove
Applicant
Johnson Muthui Mutinda
Applicant
Peter Muthui Mutinda
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Post Appeal Sentence Reduction Application
Legal Issues
- 1 Whether the High Court has jurisdiction to further reduce the applicants' sentences after the Court of Appeal has already determined the matter.
- 2 Whether Section 333(2) of the Criminal Procedure Code can be invoked at this stage to reduce the applicants' sentences.
Ratio Decidendi
The High Court held that it lacks jurisdiction to further reduce the applicants' sentences after the Court of Appeal has already determined the matter, including the issue of sentencing. The court emphasized that the applicants had the opportunity to raise the issue of Section 333(2) of the Criminal Procedure Code before the Court of Appeal, and that the appellate process had been exhausted. The court further noted that there must be finality in litigation and that convicts cannot repeatedly bring matters back to court after all appellate avenues have been exhausted. Accordingly, the applications for further sentence reduction were found to be without merit and were dismissed.
Court Disposition
applications dismissed
Orders
- The consolidated applications in Misc. Criminal Application Nos. 105 of 2019, 2 of 2020, and 5 of 2020 are dismissed.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT GARISSA
CONSOLIDATED MISC. CRIMINAL APPLICATIONSNO. 105 OF 2019, 2 OF 2020 & 5 OF 2020
JAMES MUSEE MWOVE.........................................................................................1ST APPLICANT
JOHNSON MUTHUI MUTINDA.............................................................................2ND APPLICANT
PETER MUTHUI MUTINDA...................................................................................3RD APPLICANT
VERSUS
REPUBLIC......................................................................................................................RESPONDENT
RULING
1. The three Applicants in the consolidated matters; Misc. Criminal Application Nos. 105 of 2019, 2 of 2020, and 5 of 2020 were initially charged with the offence of robbery with violence contrary to section 296(2) of the Penal Code in SRM’s Court at Mwingi in Criminal Case No. 241 of 2019.
The particulars of the offence being that the three, James Musee Mwove, Johnson Muthusi Mutinda and Peter Muthui Mutinda, on the 9th of March 2009 at Makutano village, Mwalali Sub-Location, Mbuvu Location, Nguni Division in Mwingi District within Eastern Province being armed with dangerous or offensive weapons namely knives, robbed Cleophas Mutinda Sua cash Shs.325,000/- and a motorolla mobile phone worth Shs.2,600/- and at or immediately before or immediately after the robbery stabbed the said Cleophas Mutinda Sua.
2. The applicants pleaded not guilty to the offence, the trial court upon hearing the case convicted them and sentenced them to suffer death.
3. Dissatisfied with the decision of the trial court the trio preferred an appeal to this court which appeal was dismissed.
4. The applicants appealed to the Court of Appeal which affirmed the conviction and reduced their sentences to 20 years imprisonment each.
5. The applicants seem still dissatisfied with the reduction of sentence and each separately moved this court, this time asking the court to consider reducing the sentences further by invoking the provisions of Section 333(2) of the Criminal Procedure Code.
6. After the Court of Appeal’s decision, the applicants exhausted the avenue of raising their grievances as the current issue is neither a matter of great public importance nor raising a Constitutional issue of importance to be referred to the Supreme Court.
7. The applications before this court appear to be a desperate move to seek to reduce the number of years the applicants are to serve in jail.
8. The applicants ought to appreciate that the court as an institution operates in an organized and systematic manner, following laid down procedures. So that a party aggrieved by a subordinate court’s decision moves to the High Court and when aggrieved by the High Court one moves the Court of Appeal unless in matters of resentencing as was raised in the decision of Francis Karioko Muruatetu & Others vs Republic [2015] eKLRotherwise a party cannot move in reverse.
9. This matter was dealt with by a court of concurrent jurisdiction. It went to the Court of Appeal where the sentences were reduced from death sentence to 20 years imprisonment.
10. As urged by the State the issue of sentencing was canvassed on appeal and determined. The applicants had an opportunity then to raise the issue of Section 333(2) at the time for consideration by the Court of Appeal.
11. This court therefore cannot now sit over an appeal against the decision of the Court of Appeal.
12. Important also is that there has to be an end to any trial. Convicts must desist from referring matters to court any time they assume that they left out a point.
13. Based on the above, the court finds the applications in the consolidated Misc. files 105 of 2019, 2 of 2020 and 5 of 2020 without merit. The same are dismissed.
DATED, DELIVERED AND SIGNED AT GARISSA THIS 8TH DAY OF JULY, 2021.
.....................
ALI-ARONI
JUDGE