[2021] KEHC 2989 (KLR)
The High Court held that it lacks jurisdiction to review the sentence imposed by the trial court under section 333(2) of the Criminal Procedure Code in the context of a criminal revision. The court reasoned that only the sentencing court or an appellate court on appeal can invoke section 333(2) to consider the...
Source-derived case information.
- Citation
- [2021] KEHC 2989 (KLR)
- Parties
- Appellant: John Mwangi Wachira; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 345 of 2019
- Procedural Posture
- Criminal Revision / Ruling on Application for Sentence Review
- Outcome
- application dismissed
- Judges
- GL Nzioka
- Legal Topics
- Sentencing Review, Death Sentence, Resentencing, Jurisdiction of Revision, Section 333 2 Criminal Procedure Code
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
John Mwangi Wachira
Appellant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Application for Sentence Review
Legal Issues
- 1 Whether the High Court has jurisdiction to review the sentence imposed by the trial court under section 333(2) of the Criminal Procedure Code.
- 2 Whether the period spent in custody prior to sentencing should be factored into the applicant's sentence.
Ratio Decidendi
The High Court held that it lacks jurisdiction to review the sentence imposed by the trial court under section 333(2) of the Criminal Procedure Code in the context of a criminal revision. The court reasoned that only the sentencing court or an appellate court on appeal can invoke section 333(2) to consider the period spent in custody. The sentence imposed by the trial court was found to be proper, correct, and legal, and there was no basis for interference under the court's revisionary powers. Consequently, the application for review of sentence was dismissed in its entirety.
Court Disposition
application dismissed
Orders
- The application for review of sentence is dismissed in its entirety.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS CRIMINAL DIVISION
HC CRIMINAL REVISION 345 OF 2019
JOHN MWANGI WACHIRA........................................................................APPELLANT
VERSUS
REPUBLIC................................................................................................RESPONDENT
RULING
1. The subject revision herein, is based on a notice of motionapplication dated; 11th December 2019. In the said application, the applicant seeks for orders that, the court do invoke provisions of; section 333(2) of the Criminal Procedure Code and consider the period he was in custody while on trial and factor the same into the sentence meted against him.
2. The history of the matter reveals the facts that, the applicant was arraigned before the Chief Magistrate’s Court at; Limuru vide Criminal Case Number 330 of 2009, charged with the offence of; robbery with violence contrary to section 296(2) of the Penal Code. He was convicted and sentenced to suffer death. Apparently, he appealed against the decision to the High Court vide HCCRA NO 642 of 2010, and then to the Court of Appeal vide Criminal Appeal Number 35 of 2015.
3. subsequent, to the decision in the case of Francis Karioko Muruatetu & another Vs Republic, Supreme Court of Kenya, Petition number 15 (2017) Eklr, the applicant sought for re-sentencing, in that, the Supreme Court declared the death sentence to be unconstitutional. Pursuant thereto, the applicant was re-sentenced by the trial court at Limuru whereupon the death sentence was set aside and substituted with an imprisonment term of seventeen (17) years. The court was clear that, the applicant had so far served nine (9) years in prison which would form part of the seventeen (17) years imposed.
4. As aforesaid, he now seeks that, the court reviews that sentence. However, it suffices to note that, the revisionary powers of the court are based on the parameters of section 362 of Criminal Procedure Code. Thus the order challenged must be challenged on the grounds of incorrectness, impropriety and illegality. On the face value, the sentence pronounced by the trial court is proper, correct and legal as it is within the parameters of the law.
Secondly, the court that can only invoke the provisions of section 333(2) of Criminal Procedure Code, is the court sentencing the accused. That is; either the trial court or appellate court on appeal. Therefore, the only court in the given circumstances that, can invoke the subject provision, is the court that sentenced the applicant. This court has no jurisdiction. If the accused were to approach this court, he can only do so on an appeal, at the risk of enhanced sentence pursuant to the decision of Muruatetu delivered by the Supreme Court of Kenya on 6th July 2021.
5. The upshot of the aforesaid is that this application lacks merit and I dismiss it in its entirety.
DATED, DELIVERED VIRTUALLY AND SIGNED THIS 7TH DAY OF OCTOBER 2021.
GRACE L. NZIOKA
JUDGE
7TH OCTOBER 2021
IN THE PRESENCE OF;
MS NDOMBI FOR THE RESPONDENT
APPLICANT IN PERSON
EDWIN – COURT ASSISTANT