Changwony v Republic (Miscellaneous Criminal Application 4 of 2023) [2024] KEHC 16114 (KLR) (20 December 2024) (Ruling)
Neutral citation:
[2024] KEHC 16114 (KLR)
Republic of Kenya
Miscellaneous Criminal Application 4 of 2023
JRA Wananda, J
December 20, 2024
Between
Daniel Kiprop Changwony
Petitioner
and
Republic
Respondent
Ruling
1.The Applicant is seeking sentence review. He was charged in Iten Magistrate’s Court Criminal Case No 179 of 2014 with the offence of rape contrary to Section 3(1) as read with Section 3(3) of the Sexual Offences Act. The victim/complainant was an 80 years old woman.
2.The trial Court convicted the Applicant and on 29/09/2016, sentenced him to 15 years’ imprisonment. Aggrieved with the decision, he appealed vide Eldoret High Court Criminal Appeal No 113 of 2016 against both conviction and sentence. The Appeal was however dismissed on 4/09/2019 by Wakiaga J.
3.The present Application is expressed to be brought under Sections 362, 364(1) and 365 of the Criminal Procedure Code and Articles 27(1), (2), (4), 28, 22(1), 25(c), 50(1), (2) and 51(1), (2) of the Constitution of Kenya. The Petitioner seeks resentencing on the grounds that he is a first offender, he is sick and that he is remorseful and is reformed. He also alleges that he has lost his wife and daughter while in prison. He urges the Court to be lenient and reduce his sentence.
4.The issue that arises for determination is “whether the Court should review the sentence”.
5.Regarding sentence on the charge of rape, Section 3(3) of the Sexual Offences Act provides that:
6.In answering the issue herein, I note that in respect to sentence, Wakiaga J, in his Judgment in the said Eldoret High Court Criminal Appeal No 113 of 2016, stated as follows.
7.It is therefore evident that the Applicant appealed to this same High Court against the decision of the Magistrates Court, both on conviction and sentence. As aforesaid, the Appeal was heard on merits and dismissed. The Applicant has now returned to this same Court which has already dismissed his Appeal, asking for the same sentence imposed by the Magistrate’s Court to be reduced. The Applicant’s recourse is to appeal at the Court of Appeal, not come back to this same High Court. This Court cannot sit on appeal on a decision of its own.
8.I therefore find that this Court, having already pronounced itself on both conviction and sentence, is functus officio and bereft of the jurisdiction to again review the sentence it had already dealt with in Eldoret High Court Criminal Appeal No 113 of 2016.
9.I find persuasion in the case of Joseph Maburu alias Ayub v Republic [2019] eKLR where Kiare Waweru J held as follows:
10.I also cite the decision of Hon. Lady Justice L. Njuguna in the case of Boniface Gitonga Mwenda v Republic [2021] eKLR, where, faced with a similar situation, she held as follows:
11.In view of the foregoing, it is evident that Applicant’s recourse was to move to the Court of Appeal, not to return to this Court to seek a review in disguise. What the Applicant is inviting this Court to do is to interfere with the sentence already reviewed by this very Court, an action which is untenable in law. A High Court Judge cannot sit on appeal over a decision of another Judge of equal jurisdiction. This Court having already pronounced itself on the issue of sentence, it is now functus officio and the issue of sentence is now also Res Judicata.
12.The upshot of the foregoing is therefore the conclusion that this Court lacks the jurisdiction to entertain the present Application. In the premises, the same is dismissed.
DELIVERED, DATED AND SIGNED AT ELDORET THIS 20TH DAY OF DECEMBER 2024.................WANANDA J.R. ANUROJUDGEDelivered in the presence of:N/A for the StatePetitioner present virtually from Tambach PrisonCourt Assistant: Brian Kimathi