[2022] KEHC 3043 (KLR)
The High Court held that it lacked jurisdiction to review or reopen the applicant's conviction and sentence after the dismissal of his appeal by a court of concurrent jurisdiction. The court found that the applicant's attempt to introduce new evidence and seek a reduction of sentence should have been raised during...
Source-derived case information.
- Citation
- [2022] KEHC 3043 (KLR)
- Parties
- Applicant: Francis Wasonga Susa; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Migori
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 9 of 2020
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Review and Introduction of New Evidence After Conviction and Appeal
- Outcome
- application dismissed
- Judges
- RPV Wendoh
- Legal Topics
- Defilement Offence, Sentence Review, New and Compelling Evidence, Abuse of Court Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Francis Wasonga Susa
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Review and Introduction of New Evidence After Conviction and Appeal
Legal Issues
- 1 Whether the High Court has jurisdiction to review or reopen a criminal conviction and sentence after an appeal has been dismissed by a court of concurrent jurisdiction.
- 2 Whether the applicant has presented new and compelling evidence to warrant a review of his conviction or sentence.
- 3 Whether the application constitutes an abuse of the court process.
Ratio Decidendi
The High Court held that it lacked jurisdiction to review or reopen the applicant's conviction and sentence after the dismissal of his appeal by a court of concurrent jurisdiction. The court found that the applicant's attempt to introduce new evidence and seek a reduction of sentence should have been raised during the appeal process. Since the applicant's appeal had already been determined on merit and the court was now functus officio, the application was deemed an abuse of the court process and was dismissed in its entirety.
Court Disposition
application dismissed
Orders
- The application is dismissed in its entirety.
Full Case Text
Judgment text and source record
19 paragraphs
Susa v Republic (Miscellaneous Application 9 of 2020) [2022] KEHC 3043 (KLR) (5 May 2022) (Ruling)
Neutral citation: [2022] KEHC 3043 (KLR)
Republic of Kenya
In the High Court at Migori
Miscellaneous Application 9 of 2020
RPV Wendoh, J
May 5, 2022
Between
Francis Wasonga Susa
Applicant
and
Republic
Respondent
Ruling
1. Wasonga Francis Susa, the applicant, has filed this application under Article 1, 50 (6)(b) of the Constitution and Section 200 Criminal Procedure Code seeking to call new compelling evidence which has become available to him. He also prayed for a reduction of sentence. In his oral submission in court, the applicant requested for a reduction of sentence or that he be placed on probation.
2. The prosecution counsel Mr. Kerongo Maatwa, filed submissions opposing the application. He argued that the applicant was convicted for the offence of defilement contrary to Section 8 (1) as read with Section 8(4) of the Sexual Offences Act and was sentenced to fifteen (15) years imprisonment in Migori Criminal Case 354 of 2012; that the applicant appealed to the High Court and the appeal was dismissed; Counsel urged that the court that dismissed the appeal is of concurrent jurisdiction as this court and his appeal having been considered on merit, this application is an abuse of the court process and is therefore bad in law and should be dismissed.
3. I have confirmed that indeed the applicant was convicted by the trial court in Migori Criminal Case 354 of 2012 and sentenced to fifteen (15) years. The applicant filed an appeal in Criminal Appeal 91 of 2014. Justice Majanja read the judgment of the court on 13/2/2015. The applicant did not avail a copy of the High Court judgment ther is no copy of the judgment on record. However, I believe the appeal was dismissed and that is why he is still in prison and still wants his sentence reduced. I do agree with the submission of the judgment of J. Majanja and the copy was missing from the court file. However, I believe the appeal was dismissed and that is why the applicant is still in prison and still wants the sentence reduced. I do agree with the submission by the respondent that this application is an abuse of the court because the court that heard the appeal is of concurrent jurisdiction with this court. If the applicant is dissatisfied with the Justice Majanja’s decision, he should appeal to the Court of Appeal. From the court record, the High court did explain to the applicant the right of appeal. The applicant cannot purport to reopen his case. The grounds he raises now should have been raised on appeal. If this court were to consider the grounds raised by the applicant, it would be sitting on appeal on Justice Majanja’s decision. This court has no such jurisdiction.
4. This court is functus officioof the matter. The application is therefore misplaced, bad in law and an abuse of the court process. I hereby dismiss it in its entirety.
DATED, SIGNED and DELIVERED AT MIGORI THIS 5TH DAY OF MAY, 2022R. WENDOHJUDGERuling delivered in the presence ofMr. Omooria for the Respondent.Appellant present in person.Ms. Nyauke: Court Assistant.