[2024] KEHC 1767 (KLR)
The court found that the sentence of 7 years imprisonment for attempted defilement was not illegal, incorrect, or improper, as the offence carries a minimum sentence of 10 years. The High Court's revisionary jurisdiction is limited to correcting illegality, incorrectness, or impropriety in the sentence or...
Source-derived case information.
- Citation
- [2024] KEHC 1767 (KLR)
- Parties
- Applicant: Victor Isiaho Luyombe; Respondent: Director of Public Prosecution
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision E037 of 2023
- Procedural Posture
- Criminal Revision / Ruling on Application for Revision of Sentence
- Outcome
- application dismissed
- Judges
- SC Chirchir
- Legal Topics
- Sentence Revision, Supervisory Jurisdiction, Criminal Sentencing, First Offender Principle
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Victor Isiaho Luyombe
Applicant
Director of Public Prosecution
Respondent
Procedural Posture
Criminal Revision / Ruling on Application for Revision of Sentence
Legal Issues
- 1 Whether the High Court should revise the sentence imposed by the subordinate court on the applicant for attempted defilement.
- 2 Whether the sentence of 7 years imprisonment was illegal, incorrect, or improper under the law.
- 3 Whether the applicant should have pursued an appeal rather than a revision.
Ratio Decidendi
The court found that the sentence of 7 years imprisonment for attempted defilement was not illegal, incorrect, or improper, as the offence carries a minimum sentence of 10 years. The High Court's revisionary jurisdiction is limited to correcting illegality, incorrectness, or impropriety in the sentence or proceedings, none of which were established by the applicant. The court further held that the applicant, if aggrieved by the sentence, should have pursued an appeal rather than a revision. Consequently, the application for revision lacked merit and was dismissed.
Court Disposition
application dismissed
Orders
- The application for revision of sentence is dismissed.
Full Case Text
Judgment text and source record
22 paragraphs
Luyombe v Director of Public Prosecution (Criminal Revision E037 of 2023) [2024] KEHC 1767 (KLR) (22 February 2024) (Ruling)
Neutral citation: [2024] KEHC 1767 (KLR)
Republic of Kenya
In the High Court at Kakamega
Criminal Revision E037 of 2023
SC Chirchir, J
February 22, 2024
Between
Victor Isiaho Luyombe
Applicant
and
Director of Public Prosecution
Respondent
Ruling
1. The Applicant’s Notice of Motion filed on January 19, 2023 seeks for revision of sentence. He prays that the prison meted out by the trial court be reviewed downwards or be given a non- custodial sentence.
2. The Application is premised on grounds that the intended punishment can still be achieved by way of a lesser sentence; that the applicant is a first offender, remorseful and has been of good conduct; that he has dependants back home who need his care.
Determination 3. Article 165(6) of the Constitution and Section 362 of the Criminal Procedure Code grants the High Court the supervisory powers of the subordinate courts.
4. In reviewing orders of the subordinate courts, the high court checks on the legality, correctness or property of the orders or sentence passed or regularity of the proceedings passed by the subordinate courts. (Ref: section 362 of the Criminal Procedure Code)
5. The Applicant was charged with attempted defilement of a 16-year old child. He was convicted and sentenced to 7 years in prison. The offence carries a sentence of not less than 10 years. Thus there is nothing incorrect, illegal or improper about the sentence of 7 years.
6. In any event, if the applicant felt aggrieved by the 7 years sentence, he ought to have filed an Appeal, not a review.
7. The applications without any merit and the same is dismissed.
DATED, SIGNED AND DELIVERED AT KAKAMEGA THIS 22ND DAY OF FEBRUARY, 2024S. ChirchirJudgeIn the presence ofGodwin - Court AssistantThe Appellant