[2023] KEHC 24013 (KLR)
The High Court lacks jurisdiction to review or revise a sentence where an appeal is pending before the Court of Appeal, as doing so would amount to sitting on appeal over a decision of a court of concurrent jurisdiction. Furthermore, the applicant had already been given an opportunity to mitigate before sentencing,...
Source-derived case information.
- Citation
- [2023] KEHC 24013 (KLR)
- Parties
- Applicant: Joel Ogola Lutta alias Daddy; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E050 of 2023
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Sentence Review
- Outcome
- application dismissed
- Judges
- DO Ogembo
- Legal Topics
- Sentence Review, Murder Conviction, Jurisdiction of High Court, Pending Appeal, Application of Muruatetu, Mitigation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joel Ogola Lutta alias Daddy
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Application for Sentence Review
Legal Issues
- 1 Whether the High Court has jurisdiction to review a sentence where an appeal is pending before the Court of Appeal.
- 2 Whether the applicant is entitled to sentence review based on the Supreme Court decision in Muruatetu.
- 3 Whether the applicant's mitigation and rehabilitation efforts warrant a non-custodial sentence.
Ratio Decidendi
The High Court lacks jurisdiction to review or revise a sentence where an appeal is pending before the Court of Appeal, as doing so would amount to sitting on appeal over a decision of a court of concurrent jurisdiction. Furthermore, the applicant had already been given an opportunity to mitigate before sentencing, and the Muruatetu decision does not apply to his case since the sentence was not mandatory but was imposed after consideration of mitigation. The proper forum for the applicant to pursue any challenge to his sentence is the Court of Appeal, where his appeal is currently pending. Accordingly, the application for sentence review is without merit and must be dismissed.
Court Disposition
application dismissed
Orders
- The application for review of sentence filed on 19/4/2023 is dismissed.
- File ordered closed.
Full Case Text
Judgment text and source record
24 paragraphs
Lutta v Republic (Miscellaneous Criminal Application E050 of 2023) [2023] KEHC 24013 (KLR) (24 October 2023) (Ruling)
Neutral citation: [2023] KEHC 24013 (KLR)
Republic of Kenya
In the High Court at Siaya
Miscellaneous Criminal Application E050 of 2023
DO Ogembo, J
October 24, 2023
Between
Joel Ogola Lutta alias Daddy
Applicant
and
Republic
Respondent
Ruling
1. The applicant, Joel Ogola Lutta alias Daddy, has applied to this court by way of a Chamber Summons application filed herein on 19-4-2023. The same seeks review of the sentence herein. In the Affidavit in support of the application, the applicant depones that he was charged and convicted of the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code and sentenced to serve 35 years imprisonment.
2. The applicant has now applied for revision based on the case of Francis Karioko Muruatetu & Another v R, Petition 15 and 16 of 2015. And that he has undergone many rehabilitative courses. He prays that a non-custodial sentence.
3. The Respondent has opposed the application on the basis that the sentence is proper and lenient and that the applicant’s appeal is pending before the Court of Appeal. That this court therefore lacks jurisdiction to entertain this matter.
4. I have considered the application of the applicant, the submissions made and the objections raised to it by the Prosecution. The applicant faced a murder charge, being Siaya HCCR Case No. 18 of 2019. The record of proceedings clearly show that on 21/4/2021, the applicant was accorded the opportunity to mitigate which he did as follow: -“…accused is a family man. His wife is present in court. His wife is jobless and it is boda boda riding that he relied on for livelihood. He is remorseful. His mother also depends on him. She is hypertensive and in need of comprehensive care. His incarceration has had a negative effect on the health of the mother and is warned that if given custodial sentence, the mother would suffer. He has reflected on his actions and regrets that a life was lost. He appreciates that deceased was a family person. He is remorseful for his actions which caused the death of the deceased.”
5. The applicant himself was also given the opportunity to further mitigate in person. In the mitigation, he expressed remorse and asked for forgiveness amongst other issues.
6. The court duly considered the mitigation of the accused. Having been given the opportunity to mitigate, the applicant, cannot now make an application based on the Muruatetu decision of the Supreme Court.
7. The judgment and sentence was meted out on 21/4/2023 by Hon Justice R E Aburili, a Judge of the concurrent jurisdiction. Inviting this court to revise the sentence herein would be asking this court to sit on appeal on a decision of a court of concurrent jurisdiction. This court does not have any constitutional or legal mandate to do this.
8. The court has been informed that applicant’s appeal to the Court of Appeal is still pending determination. It is only proper in the circumstances to let the applicant pursue his appeal before the Court of Appeal.
9. For reasons above, I do not find any merit in the application of the applicant filed herein on 19/4/2023. The same is accordingly dismissed. It is ordered.
DATED, SIGNED AND DELIVERED AT SIAYA THIS 24TH DAY OF OCTOBER, 2023D.O. OGEMBOJUDGE24. 10. 2023Court:File ordered closedD.O. OGEMBOJUDGE24. 10. 2023