[2023] KEHC 22815 (KLR)
The court held that the application lacked merit because, when reducing the applicant's sentence from 25 years to 10 years on appeal, it had already considered the period spent in custody as required by Section 333 of the Criminal Procedure Code. The court further emphasized that it cannot sit on appeal against its...
Source-derived case information.
- Citation
- [2023] KEHC 22815 (KLR)
- Parties
- Applicant: JOW; Respondent: Director Of Public Prosecution
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E102 of 2022
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Post Conviction Application
- Outcome
- application dismissed
- Judges
- HK Chemitei
- Legal Topics
- Sentencing, Incest Offence, Section 333 Criminal Procedure Code, Pre Sentence Custody, Appeal Dismissal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
JOW
Applicant
Director Of Public Prosecution
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Post Conviction Application
Legal Issues
- 1 Whether the period spent in custody prior to sentencing should be considered under Section 333 of the Criminal Procedure Code.
- 2 Whether the High Court can revisit its own appellate decision regarding sentence reduction.
Ratio Decidendi
The court held that the application lacked merit because, when reducing the applicant's sentence from 25 years to 10 years on appeal, it had already considered the period spent in custody as required by Section 333 of the Criminal Procedure Code. The court further emphasized that it cannot sit on appeal against its own decision, and any further challenge should be directed to a higher appellate court. Therefore, there was no basis to grant the orders sought, and the application was dismissed.
Court Disposition
application dismissed
Orders
- The application is dismissed.
Full Case Text
Judgment text and source record
21 paragraphs
JOW v Director of Public Prosecution (Miscellaneous Criminal Application E102 of 2022) [2023] KEHC 22815 (KLR) (27 September 2023) (Ruling)
Neutral citation: [2023] KEHC 22815 (KLR)
Republic of Kenya
In the High Court at Nakuru
Miscellaneous Criminal Application E102 of 2022
HK Chemitei, J
September 27, 2023
Between
JOW
Applicant
and
Director Of Public Prosecution
Respondent
Ruling
1. The applicant was charged with the offence of incest and the trial court on 2nd December 2016 found him guilty and sentenced him to 25 years’ imprisonment.
2. He appealed to this court and on 9th October 2020 this court dismissed the appeal but however reduced the period of imprisonment from 25 years to 10 years effective 2nd December 2016.
3. The application before this court is seeking to invoke the provisions of Section 333 of the Criminal Procedure code. In other words, the applicant seeks that this court considers the period he has spent in custody before the sentence.
4. Having looked at the findings of this court on appeal i do not think that the same is meritorious for the simple reason that this court in reducing the period from 25 years to 10 years must have taken into consideration the above factor.
5. In any case this court cannot sit on appeal against its own decision. The proper forum was for the applicant to move to the appellate court.
6. The application is otherwise dismissed.
DATED SIGNED AND DELIVERED VIA VIDEO LINK AT NAKURU THIS 27THDAY OF SEPTEMBER 2023. H K CHEMITEIJUDGE