[2024] KEHC 16071 (KLR)
The court found that the omission by the trial magistrate to apply section 333(2) of the Criminal Procedure Code was already addressed and remedied by the High Court on appeal. As such, the issue was moot and could not be revisited by the same court. The applicant's recourse, if dissatisfied, was to move to the...
Source-derived case information.
- Citation
- [2024] KEHC 16071 (KLR)
- Parties
- Applicant: Republic; Respondent: Festus Kipkoech Chirchir
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E095 of 2024
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Sentence Review Under Section 333(2) of the Criminal Procedure Code
- Outcome
- application dismissed
- Judges
- HI Ong'udi
- Legal Topics
- Defilement Offence, Sentencing Principles, Application of Section 333 2 Cpc, Appeal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Festus Kipkoech Chirchir
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Application for Sentence Review Under Section 333(2) of the Criminal Procedure Code
Legal Issues
- 1 Whether the court can reconsider the application of section 333(2) of the Criminal Procedure Code to the respondent's sentence after the issue was addressed on appeal.
- 2 Whether the omission by the trial magistrate to apply section 333(2) CPC can be remedied at this stage.
Ratio Decidendi
The court found that the omission by the trial magistrate to apply section 333(2) of the Criminal Procedure Code was already addressed and remedied by the High Court on appeal. As such, the issue was moot and could not be revisited by the same court. The applicant's recourse, if dissatisfied, was to move to the Court of Appeal. The application therefore lacked merit and was dismissed.
Court Disposition
application dismissed
Orders
- The application is dismissed for lack of merit.
Full Case Text
Judgment text and source record
24 paragraphs
Republic v Chirchir (Miscellaneous Criminal Application E095 of 2024) [2024] KEHC 16071 (KLR) (20 December 2024) (Ruling)
Neutral citation: [2024] KEHC 16071 (KLR)
Republic of Kenya
In the High Court at Nakuru
Miscellaneous Criminal Application E095 of 2024
HI Ong'udi, J
December 20, 2024
Between
Republic
Applicant
and
Festus Kipkoech Chirchir
Respondent
Ruling
1. Festus Kipkoech Chirchir was charged and convicted of the offence of defilement under section 8(1) as read with section 8(3) of the Sexual Offences Act in Molo Chief Magistrate’s Criminal Case (Sexual Offences) No. 75 of 2020.
2. Upon conviction on 23rd March, 2023 he was sentenced to twenty (20) years imprisonment.
3. He appealed against the Judgment vide Nakuru High Court Criminal Appeal No. E017 of 2023 where Judgment was delivered on 15th May, 2024. The High Court (Muhochi J) upheld both the conviction and sentence with an order that the sentence runs from 28th June, 2020, when the Applicant was arrested.
4. The Applicant filed this undated application seeking to have the court consider the application of section 333(2) of Criminal Procedure Code to his sentence.
5. The application was opposed by the State. Mrs Okok counsel for the respondent submitted that what the applicant sought had already been dealt with on Appeal.
6. Upon perusal of the lower court record and the High Court record, I am
7. satisfied that the omission by the trial Magistrate in not applying the provisions of section 333(2) Criminal Procedure code, was addressed on Appeal by Justice Muhochi. That issue is therefore moot and cannot be addressed by this court again. If he is dissatisfied he should move to the Court of Appeal.
8. The application is found to lack merit and is hereby dismissed.
9. Orders accordingly.
DELIVERED, VIRTUALLY DATED AND SIGNED THIS 20THDAY OF DECEMBER, 2024 IN OPEN COURT AT NAKURU.H. I. ONG’UDIJUDGE