[2022] KEHC 11722 (KLR)
The High Court declined to review or alter the sentence previously imposed and computed by another judge of concurrent jurisdiction, holding that it lacked the authority to do so. The court found that the applicants' request for remission of the remaining custodial sentence to a non-custodial sentence under a...
Source-derived case information.
- Citation
- [2022] KEHC 11722 (KLR)
- Parties
- Applicant: Cliff Bikeri Mokua; Applicant: Edwin Chweya Mokua; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E088 of 2021
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Review of Sentence
- Outcome
- Application referred to Ochieng J for further orders or directions.
- Judges
- JN Kamau
- Legal Topics
- Sentence Review, Community Service Order, Inherent Jurisdiction, Remission of Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Cliff Bikeri Mokua
Applicant
Edwin Chweya Mokua
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Application for Review of Sentence
Legal Issues
- 1 Whether the High Court has jurisdiction to remit the applicants' remaining custodial sentence to a non-custodial sentence under a Community Service Order.
- 2 Whether the applicants' deteriorating health status justifies the conversion of their sentence to a non-custodial sentence.
- 3 Whether the issue of remittal of sentence to a non-custodial sentence falls under the power of mercy and is outside the purview of the court.
Ratio Decidendi
The High Court declined to review or alter the sentence previously imposed and computed by another judge of concurrent jurisdiction, holding that it lacked the authority to do so. The court found that the applicants' request for remission of the remaining custodial sentence to a non-custodial sentence under a Community Service Order could not be entertained by this court, as the matter had already been determined by Ochieng J, who had pronounced himself on the manner in which the applicants would serve their reduced sentence. The court further noted that issues relating to the power of mercy and remission of sentence are within the purview of a designated committee and not the court....
Court Disposition
Application referred to Ochieng J for further orders or directions.
Orders
- This file be placed before Ochieng J on June 23, 2022 for his further orders and/or directions on the applicants' application.
Full Case Text
Judgment text and source record
28 paragraphs
Mokua & another v Republic (Miscellaneous Criminal Application E088 of 2021) [2022] KEHC 11722 (KLR) (13 May 2022) (Ruling)
Neutral citation: [2022] KEHC 11722 (KLR)
Republic of Kenya
In the High Court at Kisumu
Miscellaneous Criminal Application E088 of 2021
JN Kamau, J
May 13, 2022
Between
Cliff Bikeri Mokua
1st Applicant
Edwin Chweya Mokua
2nd Applicant
and
Republic
Respondent
(chieng J Criminal Petition 38 of 2020 )
Ruling
1. The Applicants herein were tried and convicted for the offence of robbery with violence contrary to section 296 (2) of the Penal Code. They were sentenced to death.
2. Being dissatisfied with the said decision, they lodged an appeal in the High Court which was dismissed in its entirety and his conviction and sentence upheld. There was no record from the High Court in the file. There was also no indication of whether or not they appealed to the Court of Appeal.
3. They subsequently filed Criminal Petition No 87 of 2018 in which the court substituted the death penalty with twenty (20) years imprisonment. They later filed Criminal Petition No 38 of 2020 where Ochieng J considered the time they had spent in remand and the same was computed into their current sentence of twenty (20) years imprisonment.
4. On January 6, 2022, they filed this application for review of the sentence seeking for orders that this court do remit the current balance of their sentences, which was three (3) years, to non-custodial sentence vide Community Service Order under its inherent jurisdiction powers bestowedupon it by the Constitution of Kenya, 2010 because their health status was deteriorating at an alarming rate due to unforeseen medical challenges dating back to the year 2011 when they were arrested.
5. In their Affidavit in support of their application, they pointed out that the new orders they sought could not have been addressed during re-sentencing in Criminal Petition No 87 of 2018 as they were serving a death penalty by then.
6. The Respondent opposed their application on the ground that the same had already been reviewed and that the issue of remittal of sentence to a non-custodial sentence was under the power of mercy which was a responsibility vested in a committee with laid down procedures and that it was therefore not under the purview of this court.
7. Right from the onset, this court restrained itself from analysing the parties’ Written Submissions as it noted from the said Submissions that Ochieng J heard and determined Petition No 38 of 2020 that was filed by the applicants herein.
8. Whereas they had pleaded with this court to hear the present application as they were seeking orders to complete their sentences on Probation or under a Community Service Order, this court noted that Ochieng J had pronounced himself on how they would serve the sentence that was reduced to twenty (20) years. As this court was of equal and competent jurisdiction as his court, it could not purport to review his decision. It was thus prudent that he handled the application herein.
Disposition 9. For the foregoing reasons, it is hereby directed that this file be placed before Ochieng J on June 23, 2022 for his further orders and/or directions on the Applicant’s application herein that was lodged on June 11, 2020.
10. It is so ordered.
DATED AND DELIVERED AT KISUMU THIS 13TH DAY OF MAY 2022J. KAMAUJUDGE