[2024] KEHC 5191 (KLR)
The High Court held that it lacks jurisdiction to review or revise a sentence that has already been considered and determined by a judge of concurrent jurisdiction on appeal. The issue of when the applicant's sentence commenced was conclusively addressed in the appellate decision, which substituted the original...
Source-derived case information.
- Citation
- [2024] KEHC 5191 (KLR)
- Parties
- Applicant: Evans Ouma Oketch; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E071 of 2023
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Revision of Sentence
- Outcome
- application dismissed
- Judges
- DO Ogembo
- Legal Topics
- Sentence Revision, Defilement Offence, Jurisdiction of High Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Evans Ouma Oketch
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 already determined on appeal by a judge of concurrent jurisdiction.
- 2 Whether the applicant is entitled to further revision of sentence under Section 333(2) of the Criminal Procedure Code.
Ratio Decidendi
The High Court held that it lacks jurisdiction to review or revise a sentence that has already been considered and determined by a judge of concurrent jurisdiction on appeal. The issue of when the applicant's sentence commenced was conclusively addressed in the appellate decision, which substituted the original sentence with a 15-year term to be calculated from the date of the lower court's sentencing. Therefore, the application for further revision is incompetent and must be dismissed as the court cannot act as an appellate body over a decision of a judge of equal jurisdiction.
Court Disposition
application dismissed
Orders
- The application for revision of sentence is dismissed wholly.
Full Case Text
Judgment text and source record
20 paragraphs
Oketch v Republic (Miscellaneous Criminal Application E071 of 2023) [2024] KEHC 5191 (KLR) (16 May 2024) (Ruling)
Neutral citation: [2024] KEHC 5191 (KLR)
Republic of Kenya
In the High Court at Siaya
Miscellaneous Criminal Application E071 of 2023
DO Ogembo, J
May 16, 2024
Between
Evans Ouma Oketch
Applicant
and
Republic
Respondent
(Being an Application for review of sentence and Conviction of Principal Magistrate’s Court at Bondo in Sexual Offence Case No. 921 of 2016 delivered on 5/7/2017 by Hon. M. Obiero, PM)
Ruling
1. The Applicant, Evans Ouma Oketch has filed an application before this court for revision of his sentence. The application filed herein on 14/6/2023 is brought under Section 333 (2) of Criminal Procedure Code. In the Affidavit in support of the application, he applicant has deponed that the was charged, tried and convicted of the offence of defilement contrary to Section 8(1) as read with Section 8 (3) of the Sexual Offences Act, No. 3 of 2006.
2. He was sentenced to serve 20 years imprisonment. That was on 5/7/2017. Appellant then filed an appeal, being Criminal Appeal No. 63 of 2017. In the sentence ruling of the court on 18/2/2020, the court observed;“However, as the Appellant was handed the mandatory sentence, I hereby set it aside and substitute it with a prison term of 15 years imprisonment to be calculated from the date of sentencing in the lower court on 5/7/2017. ”
3. So clearly, the issue of when the sentence of the Applicant runs was already dealt with by the trial judge in determining the Applicant’s appeal. By asking this court to reconsider the same, the Applicant is asking this court to sit as an appellate court over the decision of a judge of concurrent jurisdiction. This court is not possessed of any such jurisdiction.
4. The application of the Applicant filed herein on 14/6/2023 is incompetent and fails. I dismiss it wholly. It is so ordered.
DATED, SIGNED AND DELIVERED THIS 16TH DAY OF MAY, 2024D. O. OGEMBOJUDGE16/5/2024COURTRead out in Open Court in presence of the Applicant (Rachuonyo) and Ms. Kerubo for State.D. O. OGEMBOJUDGE16/5/2024