[2022] KEHC 1124 (KLR)
The court held that it has no jurisdiction to entertain the applicant's request for review of sentence or consideration under Section 333(2) of the Criminal Procedure Code because the applicant has already filed an appeal to the Court of Appeal, and the record has been transmitted. The proper forum for raising any...
Source-derived case information.
- Citation
- [2022] KEHC 1124 (KLR)
- Parties
- Applicant: Simon Ouma Nyakidi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E032 of 2022
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Review of Sentence Pending Appeal
- Outcome
- application dismissed
- Judges
- RE Aburili
- Legal Topics
- Murder Conviction, Sentence Review, Jurisdiction on Appeal, Pending Appeal, Criminal Procedure Code, Section 333 2 Application
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Simon Ouma Nyakidi
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Application for Review of Sentence Pending Appeal
Legal Issues
- 1 Whether the High Court has jurisdiction to entertain an application for review of sentence when an appeal is pending before the Court of Appeal.
- 2 Whether the applicant can seek relief under Section 333(2) of the Criminal Procedure Code in the High Court while the appeal is pending.
Ratio Decidendi
The court held that it has no jurisdiction to entertain the applicant's request for review of sentence or consideration under Section 333(2) of the Criminal Procedure Code because the applicant has already filed an appeal to the Court of Appeal, and the record has been transmitted. The proper forum for raising any issues regarding conviction, sentence, or the application of Section 333(2) is the Court of Appeal, not the High Court, once the appeal is pending. Accordingly, the application was found to be improper and was dismissed.
Court Disposition
application dismissed
Orders
- The application dated 12/3/2022 is dismissed.
- File closed.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT SIAYA
MISC. CRIMINAL APPLICATION NO. E032 OF 2022
SIMON OUMA NYAKIDI.......................................................................................APPLICANT
VERSUS
REPUBLIC.............................................................................................................RESPONDENT
(Being an Application arising from conviction and sentence of the
High Court at Siaya in HCCRC No. 17 of 2015)
RULING
1. The applicant is a convict in Siaya HCR 17/2015 wherein he was sentenced to serve 40 years imprisonment for the offence of Murder contrary to Section 203 read with Section 204 of the Penal Codeby Hon. A.J. Makau J on 19/4/2018.
2. I observe that the convict filed his Notice of Appeal at Kisumu Court of Appeal and a record of Appeal was compiled by the High Court at Siaya and sent to Kisumu. The outcome of the appeal is not indicated.
3. That being the case, this court has no power to deal with a matter which is pending before the Court of Appeal for determination on merit both against conviction and sentence. He can raise issue issues of Section 333(2) of the Criminal Procedure Codebefore the Court of Appeal.
4. The application dated 12/3/2022 is therefore found to be improper.
5. It is hereby dismissed.
6. File closed.
DATED, SIGNED AND DELIVERED AT SIAYA THIS 23RD DAY OF MARCH, 2022
R.E. ABURILI
JUDGE