[2024] KEHC 13436 (KLR)
The High Court dismissed the application for revision of sentence on the grounds that it lacked jurisdiction to entertain or revise the sentence while an appeal is pending before the Court of Appeal. Additionally, the sentence imposed was not a mandatory death sentence but a discretionary term of 40 years, and...
Source-derived case information.
- Citation
- [2024] KEHC 13436 (KLR)
- Parties
- Applicant: Simon Ouma Nyakidi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 136 of 2023
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Revision of Sentence
- Outcome
- application dismissed
- Judges
- RE Aburili
- Legal Topics
- Sentence Revision, Jurisdiction of High Court, Pending Appeal, Murder Conviction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Simon Ouma Nyakidi
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Application for Revision of Sentence
Legal Issues
- 1 Whether the High Court has jurisdiction to revise a sentence where an appeal is pending before the Court of Appeal.
- 2 Whether the sentence imposed was a mandatory minimum or discretionary sentence.
Ratio Decidendi
The High Court dismissed the application for revision of sentence on the grounds that it lacked jurisdiction to entertain or revise the sentence while an appeal is pending before the Court of Appeal. Additionally, the sentence imposed was not a mandatory death sentence but a discretionary term of 40 years, and therefore, the applicant's claims regarding ambiguity or mandatory minimum do not arise. The court emphasized that only the appellate court seized of the matter can address the applicant's grievances regarding the sentence.
Court Disposition
application dismissed
Orders
- The application dated 24/7/2023 is dismissed for lack of merit.
- This file is closed.
Full Case Text
Judgment text and source record
23 paragraphs
Nyakidi v Republic (Miscellaneous Criminal Application 136 of 2023) [2024] KEHC 13436 (KLR) (22 October 2024) (Ruling)
Neutral citation: [2024] KEHC 13436 (KLR)
Republic of Kenya
In the High Court at Siaya
Miscellaneous Criminal Application 136 of 2023
RE Aburili, J
October 22, 2024
Between
Simon Ouma Nyakidi
Applicant
and
Republic
Respondent
Ruling
1. The applicant Simon Ouma Nyakidi is a convict vide Siaya HCR 17/2015 for murder contrary to Section 203 as read with Section 204 of the Penal Code. He was sentenced to serve 40 years imprisonment on 19/4/2018 by Justice J. A Makau, (as he then was).
2. From his application subject of this ruling, which application is dated 24/7/2023, he appealed to the Court of Appeal, which appeal is still pending.
3. He now seeks for revision of the 40 years’ prison term and he claims that he was handed a mandatory minimum sentence which is ambiguous.
4. I have considered the application which my late brother Judge Ogembo (RIP) was unable to conclude before his untimely death and wherein he had granted the prosecution time to file submissions to canvass the application.
5. I have also considered the submission field by the applicant on 28/11/2023. The applicant claims that this court should consider his age, health and family status, his attitude, conduct and behaviour as well as him being a first offender in revising his 40 years’ prison term.
6. I observe that the applicant has an appeal pending before the Court of Appeal and secondly, that he was not handed mandatory death sentence. That being the case, this court is completely devoid of any jurisdiction to revise the lawful sentence imposed in exercise of judicial discretion of the Judge of concurrent and competent jurisdiction.
7. Further, that this Court has no jurisdiction to entertain a matter whose appeal is still being considered by the Court of Appeal.
8. Accordingly, the application dated 24/7/2024 is found to be devoid of any merit and is hereby dismissed. Signal to issue.This file is closed.
RULING DATED, SIGNED AND DELIVERED THIS 22ND DAY OF OCTOBER, 2024R. E. ABURILIJUDGE