[2022] KEHC 17149 (KLR)
The court held that it lacked jurisdiction to review or alter a sentence that had already been considered and upheld by a court of equal jurisdiction. The only remedy available to the applicant was to appeal to the Court of Appeal. The application for review of sentence was therefore dismissed for want of merit, as...
Source-derived case information.
- Citation
- [2022] KEHC 17149 (KLR)
- Parties
- Applicant: Brian Omondi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E047 of 2021
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Review of Sentence
- Outcome
- application dismissed
- Judges
- REA Ougo
- Legal Topics
- Defilement, Mandatory Sentencing, Sentence Review, Constitutionality of Statutes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Brian Omondi
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Application for Review of Sentence
Legal Issues
- 1 Whether the mandatory minimum sentence under section 8(3) of the Sexual Offences Act is unconstitutional.
- 2 Whether the period spent in custody should be considered in sentencing under section 333(2) of the Penal Code.
- 3 Whether the High Court has jurisdiction to review a sentence already upheld by a court of equal jurisdiction.
Ratio Decidendi
The court held that it lacked jurisdiction to review or alter a sentence that had already been considered and upheld by a court of equal jurisdiction. The only remedy available to the applicant was to appeal to the Court of Appeal. The application for review of sentence was therefore dismissed for want of merit, as the High Court cannot sit on appeal over its own decision or that of another High Court judge.
Court Disposition
application dismissed
Orders
- The application for review of sentence is dismissed.
Full Case Text
Judgment text and source record
19 paragraphs
Omondi v Republic (Miscellaneous Criminal Application E047 of 2021) [2022] KEHC 17149 (KLR) (14 December 2022) (Ruling)
Neutral citation: [2022] KEHC 17149 (KLR)
Republic of Kenya
In the High Court at Bungoma
Miscellaneous Criminal Application E047 of 2021
REA Ougo, J
December 14, 2022
Between
Brian Omondi
Appellant
and
Republic
Respondent
Ruling
1. The applicant Brian Omondi was charged with defilement vide CCRC No 14 of 2016 PM Kimilili Court. He was convicted and sentenced to 20 years imprisonment. He filed an application. HCCRA No 62/2016 and the High Court in its judgment dated the July 23, 2019 dismissed the appeal and upheld the conviction and sentence.
2. In his application filed in court on the March 20, 2021 the applicant has returned to court seeking a review of the 20 year imprisonment on grounds that the intimidating nature of the sentence provided for in section 8(3)Sexual Offences Act No 3/2005 is unconstitutional as the see the ruling inChristopher Ochieng v R [2008] eKLR No 202 of 2011 which the Court of Appeal took that the minimum mandatory sentences unconstitutional. He has also appealed that the court considers the period spent in custody pursuant to section 333 (2) of thePenal Code.
3. The application was opposed. Miss Omondi for the state argued that the applicant’s appeal was dismissed and that the court considered the issue of sentence and that the sentence was appropriate and the application should be dismissed.
4. The judge in the appeal case considered the sentence imposed and upheld it. The said court was a court of equal jurisdiction. This court cannot sit on appeal on a decision of a court with equal jurisdiction. The only avenue open to the applicant is to appeal to the Court of Appeal. I find no merit in the application and dismiss it.
DATED, SIGNED, AND DELIVERED AT BUNGOMA THIS 14TH DAY OF DECEMBER, 2022RE OUGOJUDGEIn the presence of:Ms Omondi – State CounselMs Wilkister – Court Assistant.Brian Omondi – present.