[2022] KEHC 3243 (KLR)
The court held that the applicant, having voluntarily withdrawn his appeal against conviction and sentence, was precluded from seeking further relief in the same matter before the court. The court further found that the sentence imposed—15 years' imprisonment for two counts of robbery with violence, to run...
Source-derived case information.
- Citation
- [2022] KEHC 3243 (KLR)
- Parties
- Applicant: Vincent Onyango Ochieng; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Criminal Miscellaneous Application E045 of 2022
- Procedural Posture
- Criminal Miscellaneous Application / Ruling on Post Conviction Application
- Outcome
- application dismissed
- Judges
- RE Aburili
- Legal Topics
- Robbery With Violence, Sentencing Principles, Withdrawal of Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Vincent Onyango Ochieng
Applicant
Republic
Respondent
Procedural Posture
Criminal Miscellaneous Application / Ruling on Post Conviction Application
Legal Issues
- 1 Whether the applicant is entitled to further relief after withdrawing his appeal against conviction and sentence.
- 2 Whether section 333(2) of the Criminal Procedure Code applies to the applicant's sentence in light of Article 50(2)(p) of the Constitution.
- 3 Whether the application is meritorious after the applicant withdrew his appeal.
Ratio Decidendi
The court held that the applicant, having voluntarily withdrawn his appeal against conviction and sentence, was precluded from seeking further relief in the same matter before the court. The court further found that the sentence imposed—15 years' imprisonment for two counts of robbery with violence, to run concurrently—was lawful and lenient, especially in light of the mandatory death sentence for such offences. The court also determined that section 333(2) of the Criminal Procedure Code was inapplicable because Article 50(2)(p) of the Constitution, as applied by the trial court, took precedence. Consequently, the application was found to be without merit and was dismissed.
Court Disposition
application dismissed
Orders
- The application is dismissed.
- File closed.
Full Case Text
Judgment text and source record
23 paragraphs
Ochieng v Republic (Criminal Miscellaneous Application E045 of 2022) [2022] KEHC 3243 (KLR) (9 May 2022) (Ruling)
Neutral citation: [2022] KEHC 3243 (KLR)
Republic of Kenya
In the High Court at Siaya
Criminal Miscellaneous Application E045 of 2022
RE Aburili, J
May 9, 2022
Between
Vincent Onyango Ochieng
Applicant
and
Republic
Respondent
((Being an Application arising from conviction and sentence of Siaya in HCCRA No. 63/2019 and the Principal Magistrate’s Court at Siaya in Criminal Case No. 9 of 2019)
Ruling
1. The applicant herein is a convict in Siaya PM Cr. Case No. 9 of 2019 wherein he was sentenced to serve 15 years imprisonment for the offence of Robbery with violence. He appealed to this court vide Siaya HCRA No. 63 of 2019 which appeal was determined vide Judgment delivered on 20/7/2022 via Microsoft Teams, dismissing the appeal against conviction and sentence.
2. The court further observed that in the process of delivering judgment, the appellant urged the court to allow him to withdraw his appeal against conviction and sentence. The court ordered as follows:“Accordingly, besides this judgment which is hereby pronounced, in the alternative, and on the appellant’s own application, the appeal is wholly marked as withdrawn hence the appellant’s right of appeal is not guaranteed.”
3. This court in the said judgment did consider that “the mandatory sentence for robbery with violence is death and that the appellant was handed 15 years imprisonment on each of the two counts which was to run concurrently. That sentence is lawful and extremely lenient. It took into account the mitigation and the holding in Francis Karioko Muruatetu and anotherversusRepublic [2017]eKLR”.
4. Noting that the applicant herein was given the least severe sentence of death sentence and handed only 15 years’ imprisonment for the 2 counts of robbery with violence instead of being sentenced to death, the provisions of section 333(2) of the Criminal Procedure Code are inapplicable in the circumstances as article 50(2)(p) of the Constitution applied by the trial court overrides the provisions of the Criminal Procedure Code.
5. In addition, the applicant having withdrawn his appeal, he cannot return to this court to have a second bite at the cherry.
6. Accordingly, the application herein is found to be mischievous and devoid of any merit. It is hereby dismissed.
7. File closed.
DATED, SIGNED AND DELIVERED AT SIAYA THIS 9THDAY OF MAY, 2022R.E. ABURILIJUDGE