[2024] KEHC 13813 (KLR)
The application for sentence review was dismissed because the applicant failed to annex the necessary proceedings and judgment from the lower court, depriving the High Court of the basis to make an informed decision. Furthermore, the High Court emphasized that it is not the trial court and does not have jurisdiction...
Source-derived case information.
- Citation
- [2024] KEHC 13813 (KLR)
- Parties
- Applicant: Emmanuel Omondi Ogutu; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E198 of 2024
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Sentence Review Application
- Outcome
- application dismissed
- Judges
- MS Shariff
- Legal Topics
- Sentence Review, Stealing Offence, Remorse and Mitigation, Pre Trial Custody, Jurisdiction of Review, Application of Mercy
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Emmanuel Omondi Ogutu
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Sentence Review Application
Legal Issues
- 1 Whether the High Court has jurisdiction to review and reduce the applicant's sentence imposed by the trial court.
- 2 Whether the applicant's remorse and status as sole breadwinner justify a reduction of sentence.
- 3 Whether pre-trial custody period should be factored into the computation of the applicant's sentence.
Ratio Decidendi
The application for sentence review was dismissed because the applicant failed to annex the necessary proceedings and judgment from the lower court, depriving the High Court of the basis to make an informed decision. Furthermore, the High Court emphasized that it is not the trial court and does not have jurisdiction to reduce the sentence in the absence of proper legal grounds and documentation. However, the court directed that any period served by the applicant prior to conviction should be factored into the computation of his sentence, in line with constitutional and statutory requirements.
Court Disposition
application dismissed
Orders
- Application for sentence review is disallowed as being devoid of merit.
- Any term served by the applicant prior to his conviction to be factored in during the computation of his term of sentence.
Full Case Text
Judgment text and source record
20 paragraphs
Ogutu v Republic (Miscellaneous Criminal Application E198 of 2024) [2024] KEHC 13813 (KLR) (7 November 2024) (Ruling)
Neutral citation: [2024] KEHC 13813 (KLR)
Republic of Kenya
In the High Court at Kisumu
Miscellaneous Criminal Application E198 of 2024
MS Shariff, J
November 7, 2024
Between
Emmanuel Omondi Ogutu
Applicant
and
Republic
Respondent
Ruling
1. Emmanuel Omondi Ogutu the Applicant herein was convicted of the offence of stealing contrary to the provisions of Section 268 as read with Section 275 of the penal code, in Winam SPM Criminal Case No. E217 of 2023. He was then sentenced to serve a custodial sentence of 6 years. He has now moved this court under the provisions of Section 364 of the Criminal Procedure Code and article 50 (2) (P) of the Constitution of Kenya 2010 for review of his sentence to a lesser sentence vide a notice of motion dated 12. 9.2024.
2. This application is supported by an affidavit of the Applicant of even date. I do note that the germane of this application is that he has realized his error and is now remorseful. Further that he is the only bread winner of his family and he thus craves for the exercise of mercy by this court. He also prays that the pre-trial time of 7 months be factored in the computation of his sentence.
3. It is instructive to note the applicant has not annexed any proceedings and judgment of the lower court so as to enable this court make an informed decision. In any event this court is not the trial court wherefore it has no jurisdiction to reduce the sentence. (See Muruatetu 3).
4. On the balance this application is disallowed as being devoid of merit. Any term served by the applicant prior to his conviction to be factored in during the computation of his term of sentence.
5. This file is marked as closed.
DELIVERED, SIGNED AND DATE IN KISUMU THIS 7THDAY OF NOVEMBER, 2024. M. S. SHARIFFJUDGE