[2022] KEHC 16922 (KLR)
The High Court held that the issues raised by the applicant regarding reduction of sentence and the commencement date of the sentence had already been fully considered and determined in a previous ruling by Njagi J in Kakamega HC Miscellaneous Application No 122 of 2017. The court emphasized that it could not...
Source-derived case information.
- Citation
- [2022] KEHC 16922 (KLR)
- Parties
- Applicant: Jacob Kipnyango Maiyo; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E069 of 2021
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Sentence Reduction and Commencement Date Applications
- Outcome
- applications dismissed
- Judges
- WM Musyoka
- Legal Topics
- Sentencing Principles, Commencement of Sentence, Robbery With Violence, Appeal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Jacob Kipnyango Maiyo
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Sentence Reduction and Commencement Date Applications
Legal Issues
- 1 Whether the High Court can reduce the applicant's sentence of 14 years imprisonment after a previous ruling.
- 2 Whether the sentence should commence from the date of arrest rather than the date of sentencing.
Ratio Decidendi
The High Court held that the issues raised by the applicant regarding reduction of sentence and the commencement date of the sentence had already been fully considered and determined in a previous ruling by Njagi J in Kakamega HC Miscellaneous Application No 122 of 2017. The court emphasized that it could not revisit or alter those determinations without acting as an appellate court over its own decision, which is not permitted. The applicant's remedy, if dissatisfied, lay in appealing to the Court of Appeal. The court further reiterated that the sentencing judge had considered the period spent in custody and had expressly stated the sentence would commence from the date of sentencing by...
Court Disposition
applications dismissed
Orders
- Both applications by Jacob Kipnyango Maiyo are dismissed for lack of merit.
- Copies of the ruling to be availed to the applicant and the Office of Director of Public Prosecutions Kakamega.
Full Case Text
Judgment text and source record
21 paragraphs
Maiyo v Republic (Miscellaneous Criminal Application E069 & E074 of 2021 (Consolidated)) [2022] KEHC 16922 (KLR) (23 December 2022) (Ruling)
Neutral citation: [2022] KEHC 16922 (KLR)
Republic of Kenya
In the High Court at Kakamega
Miscellaneous Criminal Application E069 & E074 of 2021 (Consolidated)
WM Musyoka, J
December 23, 2022
Between
Jacob Kipnyango Maiyo
Applicant
and
Republic
Respondent
Ruling
1. There are two applications by the same applicant. The first application, in No 069 of 2021, is dated June 2, 2021, and seeks reduction of the sentence of 14 years; while the second, in No E074 of 2021, which is undated, seeks that the court orders that the 14 years sentence commence from the date of the applicant’s arrest.
2. With regard to reduction of sentence, in a ruling, in Kakamega HC Miscellaneous Application No 122 of 2017, challenging his conviction and sentence for robbery with violence, contrary to section 296(2) of the Penal Code, cap 63, Laws of Kenya, the appellate court, on May 30, 2019, upheld the conviction of the applicant, and called for mitigation of sentence. He was eventually sentenced to 14 years imprisonment, in a ruling delivered on February 25, 2020 in the same matter. If the applicant was unhappy with the said ruling, on reduction of the sentence from death to 14 years imprisonment, then he ought to have appealed against it at the Court of Appeal. All the issues he raised in the instant application were considered by Njagi J in that ruling. If he feels that Njagi J did not exercise discretion appropriately, then he should appeal.
3. On the application to have the sentence reckoned from the date of his arrest, again, that was an issue that was before Njagi J, and the judge was alive to it when he imposed the sentence that he did impose. If the applicant was aggrieved, he should have appealed.
4. For avoidance of doubt, Njagi J said, at paragraph 6:“Section 333(2) of the Criminal Procedure Code requires a sentencing court to take into account the period spent in custody awaiting trial.” 5. Then in paragraph 13, he said:
“However, robbery with violence is a very serious offence. People cannot be allowed to reap where they have not sown by use of force. Taking into account that the appellant was in custody for 4 ½ years awaiting trial and considering that he was armed with a pistol when he robbed the victim, I resentence him to serve fourteen years imprisonment commencing from the day of sentence by the lower court.”
6. The 2 issues raised in the 2 applications were exhausted in Kakamega HC Miscellaneous Application No 122 of 2017. I cannot revisit them, without appearing to sit on appeal on what Njagi J had determined. Let the applicant move to the Court of Appeal. There is no merit in the 2 applications, and I hereby dismiss them. Let copies of this ruling be availed to Jacob Kipnyango Maiyo and to the Office of Director of Public Prosecutions Kakamega.
DELIVERED, DATED AND SIGNED AT KAKAMEGA ONTHIS 23RDDAY OF DECEMBER 2022WM MUSYOKAJUDGEErick Zalo, Court Assistant.Jacob Kipnyango Maiyo, the applicant, in person.Mr. Mwangi, instructed by the Director of Public Prosecutions, for the respondent.