[2023] KEHC 2787 (KLR)
The High Court lacks jurisdiction to review a sentence that was lawfully imposed where the applicant has already withdrawn his appeal against both conviction and sentence. The appropriate avenue for seeking a reduction of sentence would have been through the appeal process, not by way of a miscellaneous application...
Source-derived case information.
- Citation
- [2023] KEHC 2787 (KLR)
- Parties
- Applicant: Hezekiah Ombeti Kangala; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E119 of 2022
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Sentence Review Application
- Outcome
- application dismissed with partial allowance for time served
- Judges
- RE Aburili
- Legal Topics
- Sentence Review, Sexual Offences, Indecent Act With Child, Jurisdiction of High Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Hezekiah Ombeti Kangala
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Sentence Review Application
Legal Issues
- 1 Whether the High Court has jurisdiction to review a sentence after the applicant withdrew his appeal against conviction and sentence.
- 2 Whether the applicant is entitled to a reduction of sentence based on time already served.
Ratio Decidendi
The High Court lacks jurisdiction to review a sentence that was lawfully imposed where the applicant has already withdrawn his appeal against both conviction and sentence. The appropriate avenue for seeking a reduction of sentence would have been through the appeal process, not by way of a miscellaneous application for review. However, the court recognizes that the applicant is entitled to have the period spent in custody prior to being released on bond deducted from his sentence, in accordance with section 333(2) of the Criminal Procedure Code. The application for sentence review is therefore dismissed, but the applicant shall serve his ten-year sentence less the fifteen days spent in...
Court Disposition
application dismissed with partial allowance for time served
Orders
- The application for sentence review is dismissed.
- The sentence of ten years imprisonment shall be served less fifteen days spent in custody from February 21, 2016 to March 7, 2016.
Full Case Text
Judgment text and source record
24 paragraphs
Kangala v Republic (Miscellaneous Criminal Application E119 of 2022) [2023] KEHC 2787 (KLR) (24 March 2023) (Ruling)
Neutral citation: [2023] KEHC 2787 (KLR)
Republic of Kenya
In the High Court at Kisumu
Miscellaneous Criminal Application E119 of 2022
RE Aburili, J
March 24, 2023
Between
Hezekiah Ombeti Kangala
Applicant
and
Republic
Respondent
Ruling
1. The applicant herein Hezekiah Ombeti Kangala was convicted and sentenced to serve ten (10) years imprisonment for the offence of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act. This was on January 24, 2019 vide Kisumu Chief Magistrate Sexual Offences Case No 4 of 2016.
2. Initially he was charged with defilement contrary to section 8(1) and 8(2) of the Sexual Offence Act. He appealed to this court vide HCCRA No 63 of 2019 which appeal he withdrew on March 8, 2022.
3. He has now by this application filed on November 9, 2022 sought for review of the sentence because he has served almost ¾ of the sentence.
4. I find no jurisdiction for me to review sentence which was lawful and the convict having withdrawn his appeal wholly against conviction and sentence. He should have argued his case for sentence reduction on appeal.
5. I find no merit in the application for sentence reduction. Furthermore, the convict was released on bond pending trial on March 7, 2016 after appearing in court for plea on February 29, 2016 upon being arrested on February 21, 2016 as per the charge sheet dated February 29, 2016.
6. I dismiss the application for sentence review. However, I order that the sentence of ten (10) years imprisonment shall be served less fifteen (15) days that he spent in custody from February 21, 2016 to March 7, 2016 when he was arrested and released on bond pending trial.
7. Signal/order to issue and served upon prisons.
8. File closed.
9. I so order.
DATED, SIGNED AND DELIVERED AT KISUMU THIS 24TH DAY OF MARCH, 2023R E ABURILIJUDGE