[2022] KEHC 828 (KLR)
The court held that it lacked jurisdiction to review or reduce a sentence that had already been upheld by another judge of the High Court on appeal, as no judge of the High Court can sit on appeal over a decision of a judge of equal jurisdiction. The court further found that the sentence imposed was not unlawful or...
Source-derived case information.
- Citation
- [2022] KEHC 828 (KLR)
- Parties
- Applicant: Johnson Omollo Solo; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E074 of 2021
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Reduction of Sentence After Conviction and Dismissal of Appeal
- Outcome
- application dismissed with direction to credit pre-sentence custody period
- Legal Topics
- Defilement Sentencing, Mandatory Minimum Sentences, Mitigation Consideration, Jurisdiction of High Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Johnson Omollo Solo
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Reduction of Sentence After Conviction and Dismissal of Appeal
Legal Issues
- 1 Whether the High Court has jurisdiction to review or reduce a sentence already upheld by another High Court judge on appeal.
- 2 Whether the mandatory minimum sentence for defilement is unconstitutional or harsh and excessive in the circumstances.
- 3 Whether the trial court failed to consider the applicant's mitigation before sentencing.
Ratio Decidendi
The court held that it lacked jurisdiction to review or reduce a sentence that had already been upheld by another judge of the High Court on appeal, as no judge of the High Court can sit on appeal over a decision of a judge of equal jurisdiction. The court further found that the sentence imposed was not unlawful or excessive, as the trial court had considered the applicant's mitigation and other relevant factors, as confirmed by the appellate judgment. The applicant's post-conviction conduct and family circumstances did not provide a legal basis for altering the sentence. However, the court directed that the period the applicant spent in custody prior to sentencing be credited against his...
Court Disposition
application dismissed with direction to credit pre-sentence custody period
Orders
- The application for reduction of sentence is dismissed.
- The Prison authorities are directed to take into account the 29 days the applicant spent in custody prior to sentencing, crediting those days against the sentence to be served.
Full Case Text
Judgment text and source record
36 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KISUMU
MISC. CR. APPLICATION NO. E074 OF 2021
JOHNSON OMOLLO SOLO...........................................................................APPLICANT
-VERSUS-
REPUBLIC.................................................................................................RESPONDENT
RULING
Having been convicted for the offence of Defilement, the Applicant was sentenced to 20 Years imprisonment.
1. He has invoked the Constitution, and submitted that the mandatory sentence of 20 years imprisonment was unconstitutional.
2. He also submitted that the said sentence was harsh and excessive. That contention is founded upon the assertion that the trial court failed to give any consideration to the mitigation.
3. The Applicant was of the view that the court’s failure to consider his mitigation rendered the trial unfair.
4. He therefore urged this Court to set aside the sentence, and to substitute it with a more appropriate punishment.
5. He told this Court that he was a first offender who was very remorseful. He therefore pleaded with this Court to give him a second chance in life, by enabling him to re-unite with his family.
6. He said that he had been married to 2 wives, and that they had 6 children.
7. However, after he was imprisoned, one of his wives went away, leaving his children helpless.
8. He looked forward to an opportunity to provide for his family and his elderly mother.
9. Whilst he was in custody, the Applicant had undergone training in several courses, and he exhibited the certificates which he had earned.
10. I was invited to correct the mistakes which had been made by the trial court: And the best way which the Applicant suggested, was the reduction of the sentence.
11. I note that after he had been convicted, the Applicant lodged an appeal at the High Court, at Migori. He confirmed that Mrima J. dismissed the appeal, and upheld the sentence of 20 years imprisonment.
12. As I am a Judge of the High Court, I hold a jurisdiction which is at par with that of my learned brother, Mrima J.
13. Following the judgment on appeal, by which the learned Judge upheld the sentence, I hold the considered opinion that the Applicant’s request, (that I correct the mistake, by reducing the sentence), constitutes an appeal over the decision of a Judge whose jurisdiction is similar to mine.
14. No Judge of the High Court has any jurisdiction to sit on an appeal over a decision made by another Judge of the High Court.
15. I also find that, in principle, the courses undertaken by an inmate, after conviction, cannot alter an otherwise lawful sentence, to one which was either harsh or excessive.
16. Furthermore, when the family of the convict was undergoing suffering because the convict was serving a sentence of imprisonment, he should appreciate that he was the author of his said family’s misfortune.
17. I further note from the Judgment which Mrima J. delivered on 26th July 2019 that;
“The record is however clear that the court did not give the sentence because it was the minimum sentence in law.
The court stated that it had considered the mitigation by the Appellant; that the
Appellant was a first offender; the relationship between the complainant and the Appellant, which placed the Appellant in a position of trust, among many other factors as required under the Sentencing Guideliness.”
18. In the effect, the learned Judge had already held that the trial court cannot be faulted on the basis of the allegation that it handed down the sentence of 20 years imprisonment because it was the prescribed minimum sentence.
19. In the result, the application for a reduction of the sentence is dismissed.
20. Nonetheless, pursuant to the requirement of Section 333 (2)of the Criminal Procedure Code, I direct the Prison authorities to take into account the 29 dayswhich the Applicant spent in custody, whilst he was still undergoing trial; he should be given credit for the said days when calculating the actual period which he is supposed to serve the sentence.
DATED, SIGNED AND DELIVERED AT KISUMU
THIS 29TH DAY OF MARCH 2022
FRED A. OCHIENG
JUDGE