[2021] KEHC 9243 (KLR)
The court held that it lacks jurisdiction to entertain an application for review or reduction of sentence while an appeal against conviction and sentence is pending before it. The rationale is that the appellate process must be exhausted before a party can seek re-sentencing or sentence review. Entertaining such an...
Source-derived case information.
- Citation
- [2021] KEHC 9243 (KLR)
- Parties
- Applicant: Kevin Irungu Ndege; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kerugoya
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision E005 of 2020
- Procedural Posture
- Criminal Revision / Ruling on Application for Review of Sentence Pending Appeal
- Outcome
- application dismissed as premature
- Judges
- JK Mulwa
- Legal Topics
- Sentencing Review, Appeal Pending, Sexual Offences, Custodial Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kevin Irungu Ndege
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Application for Review of Sentence Pending Appeal
Legal Issues
- 1 Whether the High Court can entertain an application for review or reduction of sentence while an appeal against conviction and sentence is pending determination.
- 2 Whether the applicant is entitled to re-sentencing before exhausting the appellate process.
Ratio Decidendi
The court held that it lacks jurisdiction to entertain an application for review or reduction of sentence while an appeal against conviction and sentence is pending before it. The rationale is that the appellate process must be exhausted before a party can seek re-sentencing or sentence review. Entertaining such an application while the appeal is pending would be premature and contrary to established judicial procedure. The applicant's request was therefore dismissed as premature, with the court emphasizing that only after the appeal is determined, and if unsuccessful, can the applicant move the court for re-sentencing.
Court Disposition
application dismissed as premature
Orders
- The application for review/reduction of sentence is dismissed.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KERUGOYA
CRIMINAL REVISION NO. E005 OF 2020
KEVIN IRUNGU NDEGE...APPLICANT
– VS –
REPUBLIC.......................RESPONDENT
RULING
1. The applicant was charged with the offence of Rape Contrary to Section 10 of the Sexual Offences Act. He was convicted and sentenced to serve 15 years imprisonment on the 20/12/2018.
2. He filed an appeal challenging both conviction and sentence vide Kerugoya HCRA No. 1 of 2019.
3. His application for bail/bond pending appeal was dismissed on the 9/6/2020. The appeal has been admitted for hearing.
4. In the meantime, while the appeal is pending hearing and determination, the Applicant filed the present application on the 3/9/2020 seeking review orders of the trial court’s Judgment, with a view to reducing the sentence.
5. The application is supported by an affidavit sworn by the applicant and grounds stated on the face of the application, mainly that he was remorseful, rehabilitated and now of good conduct and character. He states to have been a first offender. He further urges that the court do consider the period spent in custody.
6. I have looked at and considered the applicants Appeal No. 1 of 2019 pending in this court.
7. On the 9/6/2020, the Court (Gitari J) by a ruling on bail pending appeal observed that the appeal had already been admitted for hearing.
8. In the circumstances, while the appeal is pending, this court cannot entertain and determine the applicant’s application for re-sentencing. A party to move the court for re sentencing hearing must first exhaust all appeal options, and only after that, if all are dismissed or withdrawn, would the court entertain the application for reduction of the sentence.
For those reasons, I find the application to be pre-mature.
It is dismissed.
Delivered, Dated and Signed at Kerugoya this 11th Day of February, 2021.
J. N. MULWA
JUDGE