[2022] KEHC 2511 (KLR)
The High Court held that it lacked jurisdiction to revise the applicant's sentence or credit the remand period because the issue should have been raised and determined during the applicant's first appeal. The court is functus officio and cannot review the judgment of a court of concurrent jurisdiction. Furthermore,...
Source-derived case information.
- Citation
- [2022] KEHC 2511 (KLR)
- Parties
- Applicant: Patrick Kihara Mwangi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Naivasha
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E161 of 2021
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Sentence Revision Application After Dismissal of Appeal and Resentencing Application
- Outcome
- application dismissed
- Legal Topics
- Sentence Revision, Remand Custody Credit, Functus Officio, Resentencing Jurisdiction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Patrick Kihara Mwangi
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Sentence Revision Application After Dismissal of Appeal and Resentencing Application
Legal Issues
- 1 Whether the period the applicant spent in remand custody prior to sentencing should be credited to his sentence under Section 333(2) of the Criminal Procedure Code.
- 2 Whether the High Court has jurisdiction to revise the sentence after the applicant's appeal and resentencing application were dismissed.
- 3 Whether the Supreme Court's clarification in the Muruatetu case limits resentencing to murder trials.
Ratio Decidendi
The High Court held that it lacked jurisdiction to revise the applicant's sentence or credit the remand period because the issue should have been raised and determined during the applicant's first appeal. The court is functus officio and cannot review the judgment of a court of concurrent jurisdiction. Furthermore, the Supreme Court's clarification in the Muruatetu case restricts resentencing to murder trials, rendering the applicant's plea for resentencing inapplicable. The applicant's remedy, if any, lies in appealing to the Court of Appeal, where he may raise the issue of remand custody credit. Consequently, the application was found to lack merit and was dismissed.
Court Disposition
application dismissed
Orders
- The application is dismissed for lack of merit.
- This file and High Court Miscellaneous Application No. E002 of 2020 are to be forthwith closed.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIVASHA
MISCELLANEOUS CRIMINAL APPLICATION NO. E161 OF 2021
PATRICK KIHARA MWANGI….…………………....………....APPLICANT
-VERSUS-
REPUBLIC……………………………….…………………….RESPONDENT
RULING
1. In this application, the Applicant is making a second attempt to have his sentence revised after losing an appeal in the same Court vide HCCRA No. 64 of 2015.
2. In Chamber Summons application filed on 21st October, 2021, he states that the period in which he was in prison custody between 19th September, 2013 and 31st March, 2015 was not computed in considering the sentence he ought to have served pursuant to Section 333 (2) of the Criminal Procedure Code and in the case of Francis Opondo v Republic [2017] eKLR. He thus prays that the period of six (6) months he was in remand custody be credited to his sentence.
3. The Applicant was charged and convicted for the offence of defilement contrary to Section 8 (1) as read with Section 8 (4) of the Sexual Offences Act. He was sentenced to serve 15 years imprisonment on 4th October 2013.
4. As per his admission, the appeal to this court was dismissed on 22nd September, 2015 by Hon. C. Meoli, J. He then filed High Court Miscellaneous Application No. E002 of 2020 in which he sought a resentencing whereby he urged the court to reduce his sentence upon offering his mitigation. The resentencing was pursuant to the famous Supreme Court decision in Francis Karioko Muruatetu & Another v. Republic [2017] eKLR. Learned Judge, Hon. Mwongo dismissed the application on 19th July, 2021 stating that the Supreme Court had further clarified its judgment in Francis Muruatetu Case expressing that resentencing only applied to murder trials. I will not highlight the decision in that case as Hon. Mwongo, J. espoused on it in his ruling.
5. Whereas the learned trial magistrate did not consider the period the Applicant was in remand custody prior his sentence, this factor ought to have been considered on his first appeal to the High Court. This is because, in an appeal, the appellate court considers the merits on conviction and sentence. This is a court of equal jurisdiction to the court that heard the appeal, implying that it cannot sit to review the judgment of a court of concurrent jurisdiction. I am functus officio in that regard.
6. In the same spirit, the Applicant’s plea for resentencing was overtaken by the Supreme Court’s further direction that resentencing only applies to murder trials. Respectively, the Applicant must be contented with his situation that the High Court cannot revisit the issue of the sentence having failed in the appeal.
7. However, all is not lost. He can appeal against the sentence to the Court of Appeal where he can ventilate that the period he was in remand custody be considered.
8. Consequently, this application cannot see the light of the day. It lacks merit and the same is hereby dismissed. I order that this file and in High Court Miscellaneous Application No. E002 of 2020 be forthwith closed. The High Court Criminal Appeal file as well as the Trial Court file should be remitted to respective registry and court for proper filing.
9. It is so ordered.
Dated and Delivered at Naivasha this 31st Day of January, 2022.
G. W. NGENYE-MACHARIA
JUDGE
In the presence of:
1. Ms Maingi for the State
2. Patrick Kihara Mwangi – Applicant in person
3. Court Assistant – Quinter Ogutu