[2024] KEHC 3839 (KLR)
The High Court, per Kavedza J, held that it lacks jurisdiction to review or revise the sentence imposed by a judge of concurrent jurisdiction. The applicant had already appealed his conviction and sentence to the High Court, where the appeal was dismissed by Lady Justice Nzioka. As such, this court cannot sit as an...
Source-derived case information.
- Citation
- [2024] KEHC 3839 (KLR)
- Parties
- Applicant: Alex Achuti Onguti; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kibera
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 101 of 2024
- Procedural Posture
- Criminal Revision / Ruling on Application for Sentence Review
- Outcome
- Application dismissed for want of jurisdiction.
- Judges
- DR Kavedza
- Legal Topics
- Defilement, Sexual Offences Act, Sentence Review, Jurisdiction, Concurrent Jurisdiction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Alex Achuti Onguti
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Application for Sentence Review
Legal Issues
- 1 Whether the High Court has jurisdiction to review or revise a sentence imposed by a judge of concurrent jurisdiction.
- 2 Whether the applicant is entitled to a review of his sentence based on mitigation and time spent in pre-trial custody.
Ratio Decidendi
The High Court, per Kavedza J, held that it lacks jurisdiction to review or revise the sentence imposed by a judge of concurrent jurisdiction. The applicant had already appealed his conviction and sentence to the High Court, where the appeal was dismissed by Lady Justice Nzioka. As such, this court cannot sit as an appellate court over the decision of a judge of equal rank. The doctrine of hierarchy and the absence of supervisory powers between judges of concurrent jurisdiction preclude the court from entertaining the application for sentence review. The application was therefore dismissed for want of jurisdiction.
Court Disposition
Application dismissed for want of jurisdiction.
Orders
- The application for sentence review is dismissed.
- No order as to costs.
Full Case Text
Judgment text and source record
21 paragraphs
Onguti v Republic (Criminal Revision 101 of 2024) [2024] KEHC 3839 (KLR) (23 April 2024) (Ruling)
Neutral citation: [2024] KEHC 3839 (KLR)
Republic of Kenya
In the High Court at Kibera
Criminal Revision 101 of 2024
DR Kavedza, J
April 23, 2024
Between
Alex Achuti Onguti
Applicant
and
Republic
Respondent
Ruling
1. The appellant was charged with two counts for the offence of defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act, No. 3 of 2006. In the alternative, he two counts of the offence of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act no. 3 of 2006. After a full trial, he was convicted on the alternative counts and sentenced to serve 10 years on each count. The sentences were to run consecutively.
2. Being aggrieved, he filed the present application seeking sentence review. The grounds raised are that trial court failed to consider his mitigation. He contended that he was a first offender, he is remorseful, he has been rehabilitated and he urged the court to consider the period spent in pre-trial custody. He prayed for a non-custodial sentence.
3. From the record, the applicant was charged and convicted by the subordinate court. Subsequently, he challenged his conviction on appeal before this court vide Milimani High Court Criminal Appeal No. 54 of 2020. Hon. Lady Justice Nzioka J dismissed the appeal for lacking in merit.
4. A judge has no jurisdiction to enquire into or review the propriety of the decisions of a fellow judge who is of concurrent jurisdiction as himself/herself. In our system of courts, which is hierarchical in nature, judges of concurrent jurisdiction do not possess supervisory jurisdiction over each other. This court cannot review an order of a court of concurrent jurisdiction as doing so would be tantamount to sitting as an appellate court on the judgment of Hon. Lady Justice Nzioka.
5. Otherwise, this court is bereft of jurisdiction to revise the sentence imposed.
Orders accordingly.
Ruling dated and delivered virtually this 23rdday of April 2024_______________D. KAVEDZAJUDGEIn the presence of:Ms. Gladys Omurokha for the RespondentApplicant absentNelson Court AssistantPage 2 of 2