[2022] KEHC 13781 (KLR)
The court found that the applicant had previously filed a similar application for sentence review in High Court Criminal Revision No E020 of 2020, which was heard and dismissed. As a result, the court held that it was functus officio and lacked jurisdiction to entertain a second application on the same matter. The...
Source-derived case information.
- Citation
- [2022] KEHC 13781 (KLR)
- Parties
- Appellant: David Wangechi Kinyua; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Naivasha
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision E130 of 2022
- Procedural Posture
- Criminal Revision / Ruling on Sentence Review Application
- Outcome
- application dismissed
- Judges
- GL Nzioka
- Legal Topics
- Sentence Review, Abuse of Process, Functus Officio
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
David Wangechi Kinyua
Appellant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Sentence Review Application
Legal Issues
- 1 Whether the applicant is entitled to a review of his sentence after a similar application was previously dismissed.
- 2 Whether the court has jurisdiction to entertain a second sentence review application on the same matter.
Ratio Decidendi
The court found that the applicant had previously filed a similar application for sentence review in High Court Criminal Revision No E020 of 2020, which was heard and dismissed. As a result, the court held that it was functus officio and lacked jurisdiction to entertain a second application on the same matter. The court further held that the applicant's conduct amounted to an abuse of the due process of law. Consequently, the application for sentence review was dismissed in its entirety.
Court Disposition
application dismissed
Orders
- The application for sentence review is dismissed.
- The file should be closed.
Full Case Text
Judgment text and source record
19 paragraphs
Kinyua v Republic (Criminal Revision E130 of 2022) [2022] KEHC 13781 (KLR) (22 September 2022) (Ruling)
Neutral citation: [2022] KEHC 13781 (KLR)
Republic of Kenya
In the High Court at Naivasha
Criminal Revision E130 of 2022
GL Nzioka, J
September 22, 2022
Between
David Wangechi Kinyua
Appellant
and
Republic
Respondent
(From Original Criminal Case No. E004 OF 2022 of Magistrates Court Engineer)
Ruling
1. The applicant has moved the court vide a notice of motion application filed in court on September 2, 2022, seeking that, the court do reduce the sentence of ten(10) years meted upon him vide Senior Principal Magistrate’s court Criminal Case No Sexual Offence 4 of 2020. The application is accompanied by a memorandum of sentence review in which he lists several reasons for the sentence review. Additionally, he has sworn and filed an affidavit in support of the application.
2. Apparently, a sentence review report has been filed by the probation department dated September 16, 2022. The Probation Officer recommends that, the “inmate serves a quarter of his sentence and thereafter he can re-apply for sentence review.
3. However, upon perusal of the files placed before the court, I note that, the applicant filed a similar application vide High Court Criminal Revision No E020 of 2020, seeking for similar orders.The same was heard and determined by the Hon Justice Richard Mwongo on September 25, 2021 and dismissed. It is therefore clear that, the applicant is abusing the due process of law. Further, in that case, I find the court is functus officio. I consequently dismiss the application.It is so ordered.
DATED, DELIVERED AND SIGNED ON THIS 22ND DAY OF SEPTEMBER 2022. GRACE L. NZIOKAJUDGE22/9/2022Court- The file should be closed. A copy of this order be supplied to incharge Prison, Director of Public Prosecution/Applicant.GRACE L. NZIOKAJUDGE22/9/2022