[2022] KEHC 10737 (KLR)
The High Court found that it was functus officio regarding the applicant's sentence, as the issue of sentencing had already been considered and determined on appeal by a court of concurrent jurisdiction. The court held that it could not re-examine or revise the sentence further, as doing so would amount to sitting...
Source-derived case information.
- Citation
- [2022] KEHC 10737 (KLR)
- Parties
- Applicant: Kaaka Masara Maigeti; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision E093 of 2022
- Procedural Posture
- Criminal Revision / Ruling on Application for Sentence Review
- Outcome
- application dismissed
- Judges
- LN Mutende
- Legal Topics
- Defilement Offence, Sentencing Review, Time Spent in Custody, Functus Officio, Criminal Procedure, Sexual Offences
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kaaka Masara Maigeti
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Application for Sentence Review
Legal Issues
- 1 Whether the High Court can review the applicant's sentence after a previous appeal was determined.
- 2 Whether the trial and appellate courts failed to consider time spent in custody under Section 333(2) of the Criminal Procedure Code.
Ratio Decidendi
The High Court found that it was functus officio regarding the applicant's sentence, as the issue of sentencing had already been considered and determined on appeal by a court of concurrent jurisdiction. The court held that it could not re-examine or revise the sentence further, as doing so would amount to sitting as an appellate court over a decision of another High Court judge, which is not permissible in law. The application for revision was therefore dismissed for lack of merit.
Court Disposition
application dismissed
Orders
- The application for revision of sentence is dismissed.
- No further orders are made.
Full Case Text
Judgment text and source record
24 paragraphs
Maigeti v Republic (Criminal Revision E093 of 2022) [2022] KEHC 10737 (KLR) (Crim) (13 June 2022) (Ruling)
Neutral citation: [2022] KEHC 10737 (KLR)
Republic of Kenya
In the High Court at Nairobi (Milimani Law Courts)
Criminal
Criminal Revision E093 of 2022
LN Mutende, J
June 13, 2022
Between
Kaaka Masara Maigeti
Applicant
and
Republic
Respondent
Ruling
1. Kaaka Masara Maigeti, the Applicant, was charged with the offence of defilement contrary to Section 8(1)(3) of the Sexual Offences Act before the Magistrate’s Court. He was convicted and sentenced to serve twenty-five (25) years imprisonment. Aggrieved, he appealed to the Superior Court, an appeal that was heard and determined by Ngenye- Macharia J. who affirmed the conviction but interfered with the sentence that was reduced to twenty years imprisonment, a judgment that was delivered on 30th May, 2018.
2. By an application dated 23th May, 2022, the applicant, seeks review of the sentence meted out. The application is premised on an affidavit deposed by the applicant where he deposes that time spent in custody as provided by Section 333 (2) of the Criminal Procedure Code (CPC) was not taken into consideration by the trial court, as he was in remand custody for two months, and, that he haS Been Rehabilitated And He Is And Ambassador Of Crime Si Poa.
3. At the hearing of the application, The State through learned Counsel Ms. Akunja opposed the application. She urged that the matter was dealt with by a court of concurrent jurisdiction which reduced the sentence and if dissatisfied, the applicant could appeal.
4. This court has revisional jurisdiction over the subordinate court which can only be exercised where the subordinate court has exercised jurisdiction not vested in it by law and/or has acted illegally or with material irregularity which must be corrected. (See Article 165 (6) (7) of the Constitution and Section 362 of the Criminal Procedure Code).
5. Section 333 (2) of the CPC provides that:Subject to the provisions of section 38 of the Penal Code (Cap. 63) every sentence shall be deemed to commence from, and to include the whole of the day of, the date on which it was pronounced, except where otherwise provided in this Code.Provided that where the person sentenced under subsection (1) has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody.
6. In its judgment, the High Court considered the question of sentence and allowed the appeal partially by reducing the sentence meted out.
7. The upshot of the above is that this court is functus officio as its mandate to determine the matter expired. I cannot purport to re-examine the decision rendered by Ngenye-Macharia J. because I will be sitting as an appellate court which is unacceptable in law.
10. Therefore, the application lacks merit and is accordingly dismissed.11. It is so ordered
DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI, THIS 13TH DAY OF JUNE, 2022. L. N. MUTENDEJUDGEIN THE PRESENCE OF:ApplicantMs Akunja for the StateCourt Assistant - Mutai