[2024] KEHC 6923 (KLR)
The court held that it lacks jurisdiction to revise the sentence at the instance of the applicants, as they did not appeal against conviction or sentence. The only possible exception would be a review based on prison decongestion, subject to a probation officer's report, which was not the basis of the present...
Source-derived case information.
- Citation
- [2024] KEHC 6923 (KLR)
- Parties
- Applicant: Daniel Mngele Mwau; Applicant: Julius Musyimi Ndikili; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Voi
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision E001 of 2024
- Procedural Posture
- Criminal Revision / Ruling on Application for Sentence Revision
- Outcome
- application dismissed
- Judges
- GMA Dulu
- Legal Topics
- Sentence Revision, Powers of High Court, Criminal Procedure Code, Mitigation Factors
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Daniel Mngele Mwau
Applicant
Julius Musyimi Ndikili
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Application for Sentence Revision
Legal Issues
- 1 Whether the High Court has jurisdiction to revise a sentence at the instance of a convicted person who did not appeal.
- 2 Whether the applicants are entitled to a review of sentence based on mitigation and first offender status.
Ratio Decidendi
The court held that it lacks jurisdiction to revise the sentence at the instance of the applicants, as they did not appeal against conviction or sentence. The only possible exception would be a review based on prison decongestion, subject to a probation officer's report, which was not the basis of the present application. The application for sentence revision was therefore dismissed as unmerited.
Court Disposition
application dismissed
Orders
- The application for review of sentence is dismissed.
Full Case Text
Judgment text and source record
24 paragraphs
Mwau & another v Republic (Criminal Revision E001 of 2024) [2024] KEHC 6923 (KLR) (28 May 2024) (Ruling)
Neutral citation: [2024] KEHC 6923 (KLR)
Republic of Kenya
In the High Court at Voi
Criminal Revision E001 of 2024
GMA Dulu, J
May 28, 2024
Between
Daniel Mngele Mwau
1st Applicant
Julius Musyimi Ndikili
2nd Applicant
and
Republic
Respondent
Ruling
1. The two applicants herein were convicted by the Magistrate’s court for stealing stock contrary to Section 268 of the Penal Code (Cap.63), and sentenced to five (5) years imprisonment each.
2. They did not appeal either against conviction or sentence.
3. They have however now come to this court through a Chamber Summons seeking revision of their sentences, and relied on 347 of the Criminal Procedure Code (Cap.75).
4. They also filed written submissions pleading remorsefulness, and that they were first offenders and further, that they were young, and asked for review of sentence.
5. The learned Prosecuting Counsel Mr. Sirima opposed the request for review of sentence and submitted that the trial Magistrate considered the mitigation factors and the period the applicants were in custody, before sentencing them. Counsel emphasized that the maximum sentence is 14 years imprisonment, and that if dissatisfied they should have appealed, failure to which, they lost the opportunity for review as this court under Section 364 of the Criminal Procedure Code, has no powers to review their sentence at their initiation once they chose not to appeal.
6. I agree with the submissions of the Prosecuting Counsel. In my view, the only opportunity that may be open to the applicants now, is a review of sentence by this court based on prison decongestion considerations, subject to sentence review reports to be filed by the Probation Officer and considered by the court. Otherwise the present application for review of sentence is unmerited.
7. I dismiss the application for review of sentence.
Dated, signed and delivered this 28th day of May 2024 in open court at Voi.GEORGE DULUJUDGEIn the presence of:-Alfred/Trizah – Court AssistantsBoth applicantsMr. Sirima for StatePage 2 of 2