[2024] KEHC 2597 (KLR)
The court held that it lacked jurisdiction to review the applicant's sentence because the sentence had already been reviewed and substituted by a judge of concurrent jurisdiction, who had considered the relevant constitutional principles and case law. The principle of finality and respect for decisions of courts of...
Source-derived case information.
- Citation
- [2024] KEHC 2597 (KLR)
- Parties
- Applicant: Augustine Omari; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E048 of 2023
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Review of Sentence
- Outcome
- application dismissed
- Judges
- TA Odera
- Legal Topics
- Sentence Review, Jurisdiction of High Court, Defilement Offence, Concurrent Jurisdiction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Augustine Omari
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 a sentence already reviewed by a judge of concurrent jurisdiction.
- 2 Whether the applicant is entitled to further review of his 30-year sentence for defilement.
Ratio Decidendi
The court held that it lacked jurisdiction to review the applicant's sentence because the sentence had already been reviewed and substituted by a judge of concurrent jurisdiction, who had considered the relevant constitutional principles and case law. The principle of finality and respect for decisions of courts of equal status precluded further review by this court. The application was therefore dismissed for want of jurisdiction.
Court Disposition
application dismissed
Orders
- The application for review of sentence is dismissed.
Full Case Text
Judgment text and source record
18 paragraphs
Omari v Republic (Miscellaneous Criminal Application E048 of 2023) [2024] KEHC 2597 (KLR) (7 March 2024) (Ruling)
Neutral citation: [2024] KEHC 2597 (KLR)
Republic of Kenya
In the High Court at Kisii
Miscellaneous Criminal Application E048 of 2023
TA Odera, J
March 7, 2024
Between
Augustine Omari
Applicant
and
Republic
Respondent
Ruling
1. Augustine Omari the applicant herein filed application dated 5. 6.2023 seeking review of his sentence of 30 years for the offence of defilement of a child aged 4 years. “He appealed vide Kisii High court criminal appeal no. 41 of 2019. (Augustine Omari v Republic [2019] eKLR) where Hon. Justice Majanja held that;“I am aware that the Court of Appeal has, in several cases, declared that the mandatory sentences under the Act are unconstitutional. In Christopher Ochieng v Republic KSM CA Criminal Appeal no. 202 of 2011 [2018] eKLR, the Court of Appeal held that:In this case, the appellant was sentenced to life imprisonment on the basis of the mandatory sentence stipulated by Section 8 (1) of the Sexual Offences Act, and if the reasoning in the Supreme Court case was applied to this provision, it too should be considered unconstitutional on the same basis. ….. Needless to say, pursuant to the Supreme Court’s decision in Francis Karioko Muruatetu & another v Republic (supra), we would set aside the sentence for life imprisonment imposed and substitute it therefore with a sentence of 30 years’ imprisonment from the date of sentence by the trial court.
2. In the circumstances, I find that the life imprisonment meted upon the appellant was excessive and cannot stand given the circumstances of the case. I therefore substitute the term of life imprisonment with an imprisonment for a term of thirty (30) years to run from the date of conviction before the trial court.’’
3. It is clear that the sentence of the applicant was already reviewed to 30 years by Hon. Justice Majanja a Judge of the High Court who also considered the Muruatetu case. This court has no jurisdiction to review orders of a Court of Concurrent jurisdiction.The application is dismissed.
T.A ODERAJUDGE7. 3 .24Delivered Virtually via teams platform in the presence of;Applicant in personMr Koima Prosecution CounselOigo – Court assistant