[2022] KEHC 13881 (KLR)
The court found that the applicant had already benefited from the appellate process, which reduced his sentence from death to 14 years imprisonment, and that the period spent in custody had been expressly considered by the appellate judge. The application for further sentence reconsideration was therefore an abuse...
Source-derived case information.
- Citation
- [2022] KEHC 13881 (KLR)
- Parties
- Applicant: Ferdinand Juma Sakwa; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E007 of 2022
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Sentence Reconsideration
- Outcome
- application dismissed
- Judges
- SN Riechi
- Legal Topics
- Robbery With Violence, Sentencing Review, Section 333 2 Criminal Procedure Code, Appeal Process, Custodial Sentence, Abuse of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ferdinand Juma Sakwa
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Application for Sentence Reconsideration
Legal Issues
- 1 Whether the applicant is entitled to a further reconsideration of sentence under Section 333(2) of the Criminal Procedure Code after a prior appellate review.
- 2 Whether the period spent in custody has already been considered in the applicant's resentencing.
Ratio Decidendi
The court found that the applicant had already benefited from the appellate process, which reduced his sentence from death to 14 years imprisonment, and that the period spent in custody had been expressly considered by the appellate judge. The application for further sentence reconsideration was therefore an abuse of the court process, as the court was functus officio and could not review a sentence already reviewed and determined by another judge. The application was dismissed for lack of merit.
Court Disposition
application dismissed
Orders
- The application for sentence reconsideration is dismissed.
Full Case Text
Judgment text and source record
23 paragraphs
Sakwa v Republic (Miscellaneous Criminal Application E007 of 2022) [2022] KEHC 13881 (KLR) (7 October 2022) (Ruling)
Neutral citation: [2022] KEHC 13881 (KLR)
Republic of Kenya
In the High Court at Bungoma
Miscellaneous Criminal Application E007 of 2022
SN Riechi, J
October 7, 2022
Between
Ferdinand Juma Sakwa
Applicant
and
Republic
Respondent
Ruling
1. The applicant with other persons were charged and convicted for the offence of robbery with violence contrary to Section 296(2) of the Penal Code vide Bungoma CMC Criminal Case No 875 of 2013. They were subsequently sentenced to suffer death thus an appeal to this court vide High Court Criminal Appeal No 54 & 56 of 2015 (Consolidated). The court (Cherere J) confirmed the conviction and reversed the sentence substituting thereof a 14-year prison term to run from March 31, 2015.
2. The applicant now moves the court for a re-consideration of sentence under the provisions of Section 333(2) of the Criminal Procedure Code on the grounds inter alia that he is now reformed and rehabilitated and that his release from prison will foster reconciliation between himself and other parties.
3. The application was disposed of by way of written submissions. Both parties filed their respective submissions and have been considered.
4. The gist of the application is for sentence re-consideration under the proviso to Section 333 (2) which states;Provided that where the person sentenced under subsection (1) has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody.
5. It is patently clear from the facts herein that the applicant has exploited the appeal process and benefited therefrom through a reduction of the sentence meted out by the subordinate court. His initial death sentence was reduced by the appellate court to a prison term of 14 years. He also benefitted from the presidential power of mercy in the year 2016 and the death sentence commuted to life imprisonment.
6. I have perused the judgment of the superior court in this matter and noted the conclusion by the learned judge in paragraph 22 of her judgement, she stated;Considering all the mitigating and aggravating factors, the period spent in pre-trial and post-trial custody and the cases I have cited, I re-sentence the petitioners to 14 years imprisonment commencing the date of sentencing before the trial court which is March 31, 2015.
7. It is therefore clear that the applicant has had the benefit of the proviso to the Section and the instant application is merely an abuse of the court process. The court cannot further review a sentence that has already been reviewed by another judge.
8. Consequently, the application is found to be without merit and is hereby dismissed.
DATED AT BUNGOMA THIS 7TH DAY OF OCTOBER, 2022S.N. RIECHIJUDGE