[2023] KEHC 25202 (KLR)
The High Court lacks constitutional and legal authority to revise or reconsider its own previous judgment or that of a judge of concurrent jurisdiction. The issues raised in the application for re-sentencing had already been determined on appeal, where the court found the life sentence imposed under section 8(2) of...
Source-derived case information.
- Citation
- [2023] KEHC 25202 (KLR)
- Parties
- Applicant: Simon Oduor Oloo; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Criminal Petition E022 of 2023
- Procedural Posture
- Criminal Petition / Ruling on Application for Re Sentencing
- Outcome
- application dismissed
- Judges
- DO Ogembo
- Legal Topics
- Re Sentencing, Jurisdiction of High Court, Sexual Offences, Mandatory Sentences
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Simon Oduor Oloo
Applicant
Republic
Respondent
Procedural Posture
Criminal Petition / Ruling on Application for Re Sentencing
Legal Issues
- 1 Whether the High Court has jurisdiction to re-sentence the applicant after dismissal of his appeal on both conviction and sentence.
- 2 Whether the life sentence imposed under section 8(2) of the Sexual Offences Act is legal and constitutional after mitigation was considered.
- 3 Whether the application raises new issues not previously determined on appeal.
Ratio Decidendi
The High Court lacks constitutional and legal authority to revise or reconsider its own previous judgment or that of a judge of concurrent jurisdiction. The issues raised in the application for re-sentencing had already been determined on appeal, where the court found the life sentence imposed under section 8(2) of the Sexual Offences Act to be legal and constitutional after considering mitigation. Entertaining the application would amount to the court sitting on appeal over its own decision, which is impermissible. Consequently, the application for re-sentencing is wholly without merit and is dismissed.
Court Disposition
application dismissed
Orders
- The application for re-sentencing filed on 6/6/2023 is wholly dismissed.
Full Case Text
Judgment text and source record
27 paragraphs
Oloo v Republic (Criminal Petition E022 of 2023) [2023] KEHC 25202 (KLR) (9 November 2023) (Ruling)
Neutral citation: [2023] KEHC 25202 (KLR)
Republic of Kenya
In the High Court at Siaya
Criminal Petition E022 of 2023
DO Ogembo, J
November 9, 2023
Between
Simon Oduor Oloo
Applicant
and
Republic
Respondent
Ruling
1. Simon Oduor Oloo, the applicant, has applied to this court by way of a Notice of motion application for a re-sentencing. The application was filed herein on 6-6-2023. In the affidavit in support of the same, the applicant has deponed that he was charged, convicted and sentenced to life imprisonment by the SPM’s court, Siaya. That his appeal to the High Court was dismissed.
2. The applicant has filed written submissions in which he raises various factors of mitigation and especially that he has rehabilitated. He has also challenged the legality of mandatory sentences. He has quoted the case of Simon Kipkurui Vs R(2019) and also Jared Koita Injiri Vs R, Criminal Appeal No. 93 of 2014.
3. He has pleaded for setting aside of the life sentence and a lesser sentence.
4. The Prosecution has pleaded that this application be dismissed as the applicant can only appeal to the Court of Appeal.
5. I have considered this application of the applicant. I have also considered the submissions of the 2 sides. And also the record of proceedings of both the trial court and the appeal before the High Court.
6. The applicant was charged, tried, convicted and sentenced to life imprisonment for the offence of defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offence Act. This was vide Siaya S.O. case No. 68 of 2019. He was sentenced on 17-11-2021. He appealed to the High Court vide Criminal Appeal No. E026 of 2021(SO). His appeal was dismissed in a judgment read out on 23/3/2022. It was dismissed both on conviction and sentence.
7. The proceedings before the trial court clearly shows that the applicant, prior to being sentenced, was given the opportunity to mitigate which he did on 28/10/2021 when he stated:“I have a wife and 3 children. 1 child has some disability. I was framed but I never committed this offence. My wife left with her children to South Nyanza. I ask the court to help me. I did not commit the offence. I want to be set free to continue with life with my family. My mother is still alive. I am the one who was taking care of her.”
8. The trial court duly considered the mitigation in satisfaction of the guidelines of the Supreme Court issued in the Muruatetu case.
9. his court in its judgment on appeal clearly dealt with the issues of the life imprisonment imposed on the applicant.
10. At paragraph 61 of the Judgment, the Hon. Justice Aburili, held;“Accordingly, the sentence of life imprisonment as provided for the section 8(2) of the Sexual Offences Act remains legal and constitutional.”
11. This application therefore raise the same issues that this court already dealt with at the appeal filed by the applicant. This court has neither the constitutional nor legal authority and jurisdiction to revise or reconsider a finding, order or judgment of a Judge of concurrent jurisdiction. That would be tantamount to asking this court to sit on appeal over its own decision. It would be spurious. Just as it would be unconstitutional and illegal. I decline the applicant’s invitation.
12. I do not find any merit in the application of the applicant filed herein on 6/6/2023. I dismiss the same wholly. It is so ordered.
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 (Kisumu Maximum) and Mr. Kubebea for State.D.O. OGEMBOJUDGE9. 11. 2023