[2021] KEHC 2909 (KLR)
The High Court dismissed the application for review of sentence on the basis that the Court of Appeal had already considered the period spent in custody when imposing the applicant's sentence. The High Court further held that it does not have jurisdiction to review or revise a sentence imposed by the Court of...
Source-derived case information.
- Citation
- [2021] KEHC 2909 (KLR)
- Parties
- Applicant: Joseph Vasi Mutuku; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 131 of 2016
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Review of Sentence
- Outcome
- application dismissed
- Judges
- GL Nzioka
- Legal Topics
- Review of Sentence, Jurisdiction of High Court, Robbery With Violence, Rape Offence, Concurrent Sentences
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Vasi Mutuku
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Review of Sentence
Legal Issues
- 1 Whether the High Court has jurisdiction to review or revise a sentence imposed by the Court of Appeal.
- 2 Whether the period spent in custody should be considered in the applicant's sentence after the Court of Appeal has already pronounced itself on the issue.
Ratio Decidendi
The High Court dismissed the application for review of sentence on the basis that the Court of Appeal had already considered the period spent in custody when imposing the applicant's sentence. The High Court further held that it does not have jurisdiction to review or revise a sentence imposed by the Court of Appeal, as its supervisory and revisionary powers do not extend to decisions of the appellate court. Consequently, the application was found to be without merit and was dismissed.
Court Disposition
application dismissed
Orders
- The application for review of sentence is dismissed.
- The file is ordered closed.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS CRIMINAL DIVISION
MISC CR APPL 131 OF 2016
JOSEPH VASI MUTUKU...............................................................APPLICANT
VERSUS
REPUBLIC .................................................................................RESPONDENT
RULING
1. The applicant is seeking for review of sentence pursuant to the provisions of; section 333(2) of the Criminal Procedure Code (Cap 75) Laws of Kenya. The historical facts of the matter reveal that, he was convicted of the offence of robbery with violence contrary to section 296(2) of the Penal Code (Cap 63) Laws of Kenya and sentenced to death, vide Chief Magistrates Criminal Case Number 4585 of 2006 at Kibera Law Court. 431
2. He was also charged with the other charges of; rape contrary to section 3(3) Sexual Offences Act No. 3 of 2006 and stealing from the person contrary to section 279 (a) of the Code. The sentence on these other charges was held in abeyance due to the death sentence on the charge of Murder. However, the applicant appealed against the conviction and sentence vide High Court criminal appeal number 280 of 2011. The appeal was heard and determined, being dismissed in its entirety.
3. The applicant pursued the matter in the Court of Appeal vide a Criminal Appeal No. 21 of 2016. The appeal was heard and determined on 24th January 2020, whereupon conviction was upheld but the appeal on sentence was allowed, in that, the death sentence was substituted with the following sentences; a sentence of twenty-five (25) years imprisonment on count 1, fifteen (15) years imprisonment on the charge of rape and five (5) years for stealing from the person.
4. The Court of Appeal clearly stated that:“The sentence shall run concurrently and take effect form 27thOctober 2011, when, the appellant was sentenced by the trial Court.
5. In view of the aforesaid, I find that, he Court of Appeal having dealt with the matter, and upheld the conviction and imposed the pronouncing itself on sentence the Court of Appeal stated as follows: -
“We have considered whether given the flaws in sentencing, we should remit this matter to the lower court for re-sentencing. However, given the fact that the appellant has been in custody for 13 years, we believe it would be fair and just for this court to finalize this matter by imposing the sentence.”
6. It is therefore clear that, the period in custody was considered before the Court of Appeal meted the sentence. Furthermore, the provisions of; sections; 332(2) and 362 of Criminal Procedure Code do not clothe the High Court with jurisdiction to either consider the period spent in custody when dealing with a sentence imposed by the Court of Appeal.
7. The High court does not have supervisory authority over the Court of Appeal or revisionary power over that court. The resultant of the aforesaid is that, the application herein has no merit and I order it dismissed and order file closed.
It is so ordered.
DATED, DELIVERED VIRTUALLY AND SIGNED ON THIS 5TH DAY OF OCTOBER 2021.
GRACE L. NZIOKA
JUDGE
READ IN THE PRESENCE OF APPLICANT
MS KIBATHI FOR RESPONDENT
EDWIN OMBUNA – COURT ASSISTANT