[2024] KEHC 306 (KLR)
The court found that the petitioner failed to present any newly discovered evidence or demonstrate any substantial legal error or unresolved question arising from the trial. The principles governing review of criminal sentences require that new and compelling evidence, not previously available despite due diligence,...
Source-derived case information.
- Citation
- [2024] KEHC 306 (KLR)
- Parties
- Applicant: Republic; Respondent: Shadrack Kipterbei Kosgei
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Petition E052 of 2021
- Procedural Posture
- Criminal Revision / Ruling on Notice of Motion for Review of Sentence
- Outcome
- petition dismissed
- Judges
- RN Nyakundi
- Legal Topics
- Manslaughter, Sentence Review, New Evidence, Criminal Procedure, Plea Bargain, Appeal Threshold
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Shadrack Kipterbei Kosgei
Respondent
Procedural Posture
Criminal Revision / Ruling on Notice of Motion for Review of Sentence
Legal Issues
- 1 Whether the petitioner has presented newly discovered evidence warranting a review of the sentence.
- 2 Whether there was a substantial legal error or unresolved question justifying review under Article 50(6) of the Constitution.
- 3 Whether the sentence imposed by the trial court was in accordance with the law.
Ratio Decidendi
The court found that the petitioner failed to present any newly discovered evidence or demonstrate any substantial legal error or unresolved question arising from the trial. The principles governing review of criminal sentences require that new and compelling evidence, not previously available despite due diligence, be presented to justify a review. The court further held that sentencing must be based on the facts as they existed at the time of sentencing, and no exceptional circumstances were shown to warrant deviation from this rule. As the petitioner did not meet the legal threshold for review under the cited statutory and constitutional provisions, the application was dismissed for...
Court Disposition
petition dismissed
Orders
- The petition for review of sentence is dismissed for want of merit under Section 382 of the Criminal Procedure Code.
Full Case Text
Judgment text and source record
19 paragraphs
Republic v Kosgei (Petition E052 of 2021) [2024] KEHC 306 (KLR) (24 January 2024) (Ruling)
Neutral citation: [2024] KEHC 306 (KLR)
Republic of Kenya
In the High Court at Eldoret
Petition E052 of 2021
RN Nyakundi, J
January 24, 2024
Between
Republic
Prosecutor
and
Shadrack Kipterbei Kosgei
Accused
Ruling
1. The Petitioner was initially charged with the offence of murder contrary to Section 203 of the Penal Code. The particulars of the charge were that on the 19th day of November 2013 at Chepkemel village Chepsaita Location in the Eldoret West District within Uasin Gishu County, murdered Celestine Chepkosgei. Following a successive plea-bargaining agreement the offence was substituted hat of Manslaughter Contrary to Section 202 as read with Section 205 of the Penal Code. The trial court convicted the petitioner by imposing a 10 year custodial sentence.
2. In this latest application the petitioner has moved the court vide a Notice of Motion dated 20. 5.2021 expressly brought under Section 362, 364(1) b and 365 of the CPC CAP 75 Laws of Kenya in Reliance to Article (1) 2(3), 19(4) 23(1) 25c, 50(2) 59(2) a & b 165(3) a, b & d (6) (7) and 258(1) of the Constitutionof Kenya 2010.
3. I have considered the application by adopting the provisions of the criminal procedure code relied upon by the petitioner. In my considered view, there is no newly discovered evidence presented before this court for the verdict of ten years imprisonment to be reviewed. In addition, there is no substantial legal error which occurred at the trial or important questions which remain unresolved for the motion to be considered under Art. 50 (6) (a) & (b) of the Constitution. Motions for a new trial rest on newly compelling discovered evidence. That the evidence has come to the knowledge of the petitioner since the conviction and sentence. That it was not owing to the want of due diligence that it did not come sooner that the date of the Notice of Motion. It is also clear that the petitioner must meet the threshold that the material evidence so relied upon was meant to produce a different verdict for the interest of justice. All these pertinent principles have not been answered by the petitioner for this court to exercise discretion to review the verdict on sentence. The formulation of the sentence by the session Judge did appreciate the provisions of section 333 (2) of the Criminal Procedure Code. The general rule is that this court must decide the question of sentence according to the facts in existence at the time when the sentence was imposed and not according to new circumstances which came into existence afterwards and, even if there are exceptions to this rule, this case does not appear to constitute such exception.
4. The petition is therefore dismissed for want of merit under Section 382 of the Criminal Procedure Code.
DATED SIGNED AND DELIVERED AT ELDORET THIS 24TH DAY OF JANUARY 2024. ....................................R. NYAKUNDIJUDGE