[2022] KEHC 10302 (KLR)
The court held that it lacks jurisdiction to review or convert a custodial sentence to probation after conviction and exhaustion of appeals, as this function lies with the Executive through remission or the prerogative of mercy. The application was found to be procedurally improper and incompetent, as the applicant...
Source-derived case information.
- Citation
- [2022] KEHC 10302 (KLR)
- Parties
- Applicant: Evans Simiyu; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 53 of 2019
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Sentence Review
- Outcome
- Application struck out as incompetent.
- Judges
- WM Musyoka
- Legal Topics
- Sentence Review, Defilement Conviction, Separation of Powers, Prerogative of Mercy
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Evans Simiyu
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Application for Sentence Review
Legal Issues
- 1 Whether the High Court has jurisdiction to review or convert a custodial sentence to probation after conviction and exhaustion of appeals.
- 2 Whether the application for sentence review is properly before the court.
Ratio Decidendi
The court held that it lacks jurisdiction to review or convert a custodial sentence to probation after conviction and exhaustion of appeals, as this function lies with the Executive through remission or the prerogative of mercy. The application was found to be procedurally improper and incompetent, as the applicant should pursue administrative avenues for sentence review. The court emphasized the separation of powers and the limited role of the judiciary in post-conviction sentence management, striking out the application accordingly.
Court Disposition
Application struck out as incompetent.
Orders
- The undated application filed on July 3, 2019 is struck out.
- Copies of the proceedings to be availed to the applicant and the Director of Public Prosecutions.
Full Case Text
Judgment text and source record
18 paragraphs
Simiyu v Republic (Miscellaneous Criminal Application 53 of 2019) [2022] KEHC 10302 (KLR) (24 June 2022) (Ruling)
Neutral citation: [2022] KEHC 10302 (KLR)
Republic of Kenya
In the High Court at Kakamega
Miscellaneous Criminal Application 53 of 2019
WM Musyoka, J
June 24, 2022
Between
Evans Simiyu
Applicant
and
Republic
Respondent
Ruling
1. The application is undated and was filed herein on July 3, 2019. It seeks that I review the sentence that the applicant has been serving since 2010, upon a conviction of defilement, and convert it to probation, to be served for the remainder of the duration of the custodial sentence imposed.
2. Once a person is convicted, and exhausts his appeals, the execution of the sentence of imprisonment is the responsibility of the Executive, through the prison system. If the convict feels that he has sufficiently reformed, and need has arisen for his sentence to be reviewed or reduced or substituted, that remains the mandate of the Executive, through remission or the exercise of the prerogative of mercy. Even the decongestion exercises that the High Court often engages in, are done at the request of the Executive, through the Ministry responsible for prisons and other rehabilitative institutions. The role of the court is to impose sentence, and can only review through the legal structures provided by the law, of appeal and revision, and by way constitutional petition, where there is abuse or violation of rights. What the petitioner is inviting me to do is not procedural, and blurs the separation of powers principle, and he should pursue administrative avenues, through the Executive, for review of his sentence.
3. The undated application filed on July 3, 2019 is, therefore, incompetent, and I hereby strike it out. Let copies of these proceedings be availed to the applicant and to the Director of Public Prosecutions.
DELIVERED, DATED AND SIGNED AT KAKAMEGA ON THIS 24THDAY OF JUNE, 2022WM MUSYOKAJUDGEErick Zalo, Court Assistant.Evans Simiyu, the petitioner, in person.Mr. Mwangi, instructed by the Director of Public Prosecutions, for the respondent.