[2022] KEHC 10303 (KLR)
The court held that the applicant, having already appealed against his conviction and sentence and having had that appeal dismissed, could not seek a review of the sentence on the same grounds. The issues raised in the application for review should have been canvassed in the appeal. Entertaining the application...
Source-derived case information.
- Citation
- [2022] KEHC 10303 (KLR)
- Parties
- Applicant: Yosia Musungu; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 44 of 2020
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Review of Sentence
- Outcome
- application dismissed as abuse of process
- Judges
- WM Musyoka
- Legal Topics
- Review of Sentence, Abuse of Process, Criminal Appeal Dismissal
- 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
Yosia Musungu
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Application for Review of Sentence
Legal Issues
- 1 Whether the applicant is entitled to review of sentence after dismissal of his appeal.
- 2 Whether the application amounts to an abuse of the court process.
Ratio Decidendi
The court held that the applicant, having already appealed against his conviction and sentence and having had that appeal dismissed, could not seek a review of the sentence on the same grounds. The issues raised in the application for review should have been canvassed in the appeal. Entertaining the application would amount to allowing the applicant a second opportunity to challenge the conviction and sentence, which is contrary to the principles of finality in litigation and constitutes an abuse of the court process. Accordingly, the application was dismissed.
Court Disposition
application dismissed as abuse of process
Orders
- The application is dismissed.
- Copies of the ruling to be made available to the applicant and the Office of the Director of Public Prosecutions.
Full Case Text
Judgment text and source record
18 paragraphs
Musungu v Republic (Miscellaneous Criminal Application 44 of 2020) [2022] KEHC 10303 (KLR) (24 June 2022) (Ruling)
Neutral citation: [2022] KEHC 10303 (KLR)
Republic of Kenya
In the High Court at Kakamega
Miscellaneous Criminal Application 44 of 2020
WM Musyoka, J
June 24, 2022
Between
Yosia Musungu
Applicant
and
Republic
Respondent
Ruling
1. The Motion, undated but filed herein on 10th September 2020, seeks review of sentence. The applicant had been convicted and sentenced, in Butali PMCCRC No. 38 of 2019, on a charge of simple robbery contrary to sections 295 and 296(1) of the Penal Code, Cap 63, Laws of Kenya.
2. The applicant filed an appeal against that conviction and sentence in Kakamega HCCRA No. 86 of 2019, and the said appeal was dismissed, on 23rd July 2020. The issues that the applicant is now raising should have been raised in that appeal. What the appellant is doing is to seek to have a second bite at the sherry.
3. The application is an abuse of the court process. It is hereby dismissed. Copies of this ruling to be made available to the applicant and the Office of the Director of Public Prosecutions.
DELIVERED, DATED AND SIGNED AT KAKAMEGA ON THIS 24TH DAY OF JUNE 2022WM MUSYOKAJUDGEErick Zalo, Court Assistant.Yosia Musungu, the applicant, in person.Mr. Mwangi, instructed by the Director of Public Prosecutions, for the respondent.