[2025] KEHC 5017 (KLR)
The court held that once an appeal has been heard and determined, the High Court cannot entertain a subsequent application for review of sentence on grounds that could have been raised in the appeal. The applicant had already appealed his conviction and sentence, and the issue of reckoning the period spent in...
Source-derived case information.
- Citation
- [2025] KEHC 5017 (KLR)
- Parties
- Applicant: Emmanuel Odhiambo alias Imbene; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Busia
- Jurisdiction
- Kenya
- Judgment Date
- 25 April 2025
- Case Number
- Miscellaneous Criminal Application E015 of 2022
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Review of Sentence
- Outcome
- application dismissed
- Judges
- WM Musyoka
- Legal Topics
- Review of Sentence, Jurisdiction of High Court, Defilement Offence, Time Spent in Custody
- Source Language
- english
Source-derived case record
Summary, issues, holding and outcome
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Parties
Emmanuel Odhiambo alias Imbene
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Application for Review of Sentence
Legal Issues
- 1 Whether the High Court has jurisdiction to review the applicant's sentence after dismissal of his appeal.
- 2 Whether the period spent in custody prior to sentencing should be considered under section 333(2) of the Criminal Procedure Code.
Ratio Decidendi
The court held that once an appeal has been heard and determined, the High Court cannot entertain a subsequent application for review of sentence on grounds that could have been raised in the appeal. The applicant had already appealed his conviction and sentence, and the issue of reckoning the period spent in custody should have been raised as a ground of appeal. Since the appeal was dismissed and the applicant did not pursue further appellate remedies, the High Court lacks jurisdiction to revisit the sentence. The application was therefore dismissed for want of merit.
Court Disposition
application dismissed
Orders
- The application for review of sentence is dismissed.
- The file shall be closed.
Full Case Text
Judgment text and source record
19 paragraphs
Odhiambo v Republic (Miscellaneous Criminal Application E015 of 2022) [2025] KEHC 5017 (KLR) (25 April 2025) (Ruling)
Neutral citation: [2025] KEHC 5017 (KLR)
Republic of Kenya
In the High Court at Busia
Miscellaneous Criminal Application E015 of 2022
WM Musyoka, J
April 25, 2025
Between
Emmanuel Odhiambo alias Imbene
Applicant
and
Republic
Respondent
Ruling
1. The applicant herein was convicted of defilement, contrary to section 8(4) of the Sexual Offences Act, Cap 63A, Laws of Kenya, and was sentenced to 15 years imprisonment, by Hon. HN Ndung’u, Chief Magistrate, in Busia CMCSOAC No 100 of 2014. He filed an appeal, in Busia HCCRA No 3 of 2016, which was dismissed on 18th August 2016, by W. Korir J.
2. He has now come before me, by an undated application, filed on 2nd September 2022, seeking review of sentence, premised on section 333(2) of the Criminal Procedure Code, Cap 75, Laws of Kenya, with respect to the period that he spent in custody being reckoned.
3. The applicant had a chance to appeal, which he took advantage of, through Busia HCCRA No 3 of 2016. The issue he raises now should have been one of his grounds of appeal, which the Judge would have considered in the judgement of 18th August 2016. His appeal having been disposed of, there would be no other basis for me to address issues that ought to have been dealt with in that appeal. If he was unhappy with the outcome of his appeal, he should have moved on to the Court of Appeal.
4. I do not have jurisdiction to do that which he invites me to do. The result is that the application before me, which is undated, is without merit. I hereby dismiss it. This file shall be closed. Orders accordingly.
DELIVERED, DATED AND SIGNED IN OPEN COURT, AT BUSIA, ON THIS 25TH DAY OF APRIL 2025. W MUSYOKAJUDGEMr. Arthur Etyang, Court Assistant.Mr. Emmanuel Odhiambo alias Imbene, the applicant, in person.AdvocatesMr. Tony Onanda, instructed by the Director of Public Prosecutions, for the respondent.