[2023] KEHC 25189 (KLR)

Oloo v Republic (Miscellaneous Criminal Application E025 of 2023) [2023] KEHC 25189 (KLR) (9 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25189 (KLR)

Republic of Kenya

In the High Court at Siaya

Miscellaneous Criminal Application E025 of 2023

DO Ogembo, J

November 9, 2023

Between

David Odhiambo Oloo

Applicant

and

Republic

Respondent

Ruling

1. The applicant, David Odhiambo Oloo, filed before this court, a chamber summons application on 3-3-2023. The same on the face of it shows it is pegged on various constitutional provisions including Articles 22, 23(3)(8), 165, 25(c), 26, 27(1)(2), 28 and 29.

2. The application has the following prayers: -(i)That this Honourable court be pleased to declare the life sentence which was imposed on the applicant to be unconstitutional and that an appropriate sentence be imposed.

3. Attached to the application is a petition in which the applicant confirms that he is serving a life sentence. He has cited the case of Francis Karioko Muruatetu andanotherv R, and the South African Case of State v Oscar Pistorius, and also Benson Ochieng andanotherv R, Misc. Cr. 45/2018 (Nakuru), on the issue of determinate sentence and the purpose of punishment, being retribution, deterrence and rehabilitation.

4. He added that in sentencing, the court ought to take into account the mitigating circumstances of the case (Edwin Otieno Odhiambo v R, Criminal Appeal no 359 of 2006).

5. He has prayed for a lenient sentence and raised a number of mitigating factors including that he is remorseful and regretful of what happened. That he is reformed. That he is old in age. He has prayed that the life sentence be set aside and that an appropriate sentence be meted out taking into account the period he had served in remand custody.

6. The applicant filed an additional document christened “mitigation submissions i.r.o resentencing”. I have perused the same. It raises the same issues of mitigation and sentencing and stresses the need of according an accused person an opportunity to mitigate.

7. Ms. Mumu for the Prosecution responded to the applicants’ application. The Prosecution has submitted that this court is functus officio and the application ought to appeal to the Court of Appeal. The court was asked to dismiss this application.

8. I have considered the submissions both of the applicant and the Respondent. The applicant was convicted and is serving a life imprisonment. He has now approached this court to consider his mitigation and to revise the sentence of life to a more lenient and definite term in accordance with the Sentencing Policy Guidelines.

9. The record of proceedings of the trial court would help shed light on this matter of whether the accused was or was not accorded the right to mitigate (as he alleged) and the appropriateness of the sentence meted out.

10. And lastly, whether this court is the correct forum for the applicant to ventilate this application i.e. whether this court has the jurisdiction to entertain this application and to issue the orders sought.

11. It is on record that the accused was charged with the offence of Murder contrary to Section 203 as read with Section 204 of the Penal Code. However, following a Plea bargain with the prosecution, the applicant was convicted and sentenced on the lesser charge of Manslaughter. Upon admitting the facts of the case as read out to him on 16-2-2022, the trial court gave the accused the opportunity to mitigate.

12. The accused through his Advocate said the following in mitigation:“The accused is a first offender, He never intended to murder the deceased. He prays for leniency of the court. He is remorseful. The court can give him a chance to mitigate in person as well.”

13. The applicant was given a chance to personally mitigate. He stated:“George Otieno was my friend. He was my best friend for a long time. He was also a magician and until his demise, he was my best friend. I am 26 years old. I am married with 2 children. I used to do Jua Kali jobs. I had an ass for transportation of goods. I never planned to kill the deceased who was my friend. I do not know why I killed the deceased, I am a sinner. I was alone. I know God cannot forgive me because of what I did. That is why I confessed. I did not see why I should run away or deny what I did. I decided to admit the offence because I did it. I killed him. I would be a murderer. Here I am. A murderer. Let God forgive me. I have rendered those 2 women widows and many children are now orphaned. I know why they can never forgive me because of my actions. They are going to suffer. Let the court make whatever decision it makes because I have done what I did. I will not blame the court.”

14. So, the court granted the applicant the opportunity to mitigate. He first did mitigate through his advocate. He went on to further mitigate in person. And what a moving mitigation it was. His submissions therefore that he was not accorded the opportunity to mitigate is therefore bare of any truth. He even made further mitigation after the court took the sworn statement of the victims (widows)!

15. In sentencing the applicant, the court had this to say amongst other observations;“I have also considered the mitigations by the accused who is aged 26 years old and has a family. He is a first offender and regrets the offence claiming that the deceased was his friend for a long time.”

16. The trial Judge clearly therefore took into account the mitigating factors the applicant raised. The court thereafter took into consideration all the circumstances of the case before passing the sentence of life imprisonment. The Right of Appeal to the Court of Appeal was duly explained to the applicant.

17. Vide this application, the applicant prays that this court re-looks at and revises the orders of sentence issued by the Hon. Justice R.E. Aburili, a Judge of concurrent jurisdiction. Neither the constitution, nor any statute bestows on this court powers of revision over courts of concurrent jurisdiction. Article 165 of the Constitution as well as Section 362 of the Criminal Procedure Code limits this courts powers of revision to orders or findings of subordinate court. The legal logic is that by asking the court to relook at the sentence, the applicant is essentially asking this court to sit on appeal on an order of a Judge of concurrent jurisdiction, this court does not possess this jurisdiction and I decline to accept the invitation of the applicant to assume one.

18. For the above reason, the application of the applicant must fail. For lack of any merit, I dismiss wholly the application of the applicant dated 3-3-2023.

19. Orders accordingly.

DATED, SIGNED AND DELIVERED AT SIAYA THIS 9TH DAY OF NOVEMBER, 2023. D.O. OGEMBOJUDGE9. 11. 2023Court:Ruling read out in Open court in the presence of the applicant (from Manyani) and Mr. Kubebea for State.D.O. OGEMBOJUDGE9. 11. 2023