[2014] KEHC 6055 (KLR)
The court held that it lacked jurisdiction to interfere with a sentence imposed by a judge of concurrent jurisdiction. The proper procedure for challenging such a sentence is by appeal to the Court of Appeal, not by way of a miscellaneous application before another High Court judge. The court further found that...
Source-derived case information.
- Citation
- [2014] KEHC 6055 (KLR)
- Parties
- Applicant: Mwinyi Mwinyi Mzungu; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Criminal Miscellaneous Application 17 of 2013
- Procedural Posture
- Criminal Miscellaneous Application / Ruling on Application to Vary Sentence
- Outcome
- application dismissed
- Judges
- GO Shikwe
- Legal Topics
- Sentencing Jurisdiction, Narcotic Offences, Mitigation Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mwinyi Mwinyi Mzungu
Applicant
Republic
Respondent
Procedural Posture
Criminal Miscellaneous Application / Ruling on Application to Vary Sentence
Legal Issues
- 1 Whether the High Court has jurisdiction to alter a sentence imposed by a judge of concurrent jurisdiction.
- 2 Whether failure to call for mitigation before sentencing constitutes an oversight warranting interference.
- 3 Whether the applicant is entitled to the option of a fine in lieu of imprisonment under the circumstances.
Ratio Decidendi
The court held that it lacked jurisdiction to interfere with a sentence imposed by a judge of concurrent jurisdiction. The proper procedure for challenging such a sentence is by appeal to the Court of Appeal, not by way of a miscellaneous application before another High Court judge. The court further found that Article 159(2)(d) of the Constitution does not confer blanket jurisdiction to disregard established appellate procedures, nor does Section 28 of the Penal Code provide a basis for the relief sought. The application was therefore found to be without merit and was dismissed.
Court Disposition
application dismissed
Orders
- The application is disallowed.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CRIMINAL MISC. APPLICATION NO. 17 OF 2013
(From a Judgment of High Court at Mombasa in Criminal Appeal No. 125 of 2011 (Nzioka, J) dated 16th March, 2012 and (Original Criminal Case No. 205 of 2010 by Hon. Mutende – SPM Chief Magistrate's Court Mombasa).
IN THE MATTER OF ARTICLE 23(1) 165 (3) (B) OF THE CONSTITUTION AND IN THE MATTER OF ARTICLE 50(1) OF THE CONSTITUTION
IN THE MATTER OF A FINE PURSUANT TO SECTION 3 OF THE NARCOTIC DRUGS ACT.
MWINYI MWINYI MZUNGU …............................................... PETITIONER
VERSUS
REPUBLIC ……….……....................................................…RESPONDENT
RULING
The Applicant was charged Convicted and Sentenced to fifteen (15) years imprisonment for the offence of trafficking in Narcotic drugs contrary to section 4(a) of the Narcotics drugs and Psychotropic substances control Act No. 4 of 1994 by Hon. Mutende – Senior Principal Magistrate (as she then was).
Being dissatisfied of the Conviction and Sentence he lodged an appeal in the High Court vide Criminal Appeal No. 125 of 2011 Honourable Nzioka Judge heard the appeal and substituted the charge of trafficking with the lesser one of possession and proceeded to Sentence the appellant for five (5) years imprisonment without the option of a fine.
The present application seeks orders for a further interference of lady Justice Nzioka's Judgment and Sentencing in particular by giving the applicant the option of a fine in default of the Sentence of five (5) years.
Mr. Magolo Counsel for he applicant relies on article 159 (b) which provides,
“Justice shall be administered without undue regard to technicalities”.
With due respect to Counsel that article does not confer blanket jurisdiction to the High Court to determine matters that have already been determined by another Judge with concurrent jurisdiction. There is established a proper and methodical procedure of Appeal which lies to the Court of Appeal. Neither does Section 28 of the Penal Code confer jurisdiction as it merely provides the regime of Sentencing in regard to fines.
Counsel for the applicant submits that there was an oversight by reason of failure by the learned trial Judge by not calling for mitigation before Sentencing the Accused to five (5) years imprisonment.
Section 179 of the Criminal Procedure Code provides,
“When a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence, and the combination is proved but the remaining particulars are mot proved, he may be Convicted of the minor offence although he was not charged with it”.
The Judge in her evaluation considered this and decided to apply this section. I would not want to delve further as to do so would be siting in an appeal of my colleague.
I am not persuaded that this Court has the jurisdiction to interfere with a Sentence entered by a fellow Judge.
I find this application to be without merit and it is disallowed.
Ruling delivered dated and signed this 2nd day of April, 2014.
.…..................
M. MUYA
JUDGE
2ND APRIL, 2014
In open Court in the presence of:-
Learned State Counsel Miss Mwaura
Learned Counsel for the applicant Mr. Magolo
Court clerk Musundi