(Being an Application for Sentence Review from Sentence in Bondo Principal Magistrates Court SOA No. 44 of 2018 by Hon. S. M. Mathenge Senior Resident Magistrate dated 24/5/2019).
Daniel Onyango Ochar, the Applicant herein has moved this court by way of a Notice of Motion application dated 12/5/2023. The said application seeks that the sentence of the Applicant be reviewed. In support of this application, the Applicant has sworn an Affidavit in which he depones that he was originally sentenced to serve 20 years imprisonment for the offence of Defilement Contrary to Section 8 (1) as read with Section 8(2) of the Sexual Offences Act No. 3 of 2006 in Bondo PM’s Court Cr. Case No. 44 of 2018. He has further depones that he has undergone rehabilitation and has a sick child whom he need to take care of.
The prosecution objects to this application on the basis that this court already determined on this matter and that the only recourse for the applicant is to appeal.
I have considered this application, the affidavit in support of the same and the response of the prosecution. I have also perused the record of proceedings relating to this case. The record clearly shows that upon being convicted and sentenced to serve 20 years imprisonment, the applicant filed an appeal against both the conviction and sentence before this court, being HCCCR. Apeal Case No. 35 of 2019. In the judgment of the court on 20/7/2020, the High Court dismissed the Applicant’s Appeal on conviction. The court, however, allowed the applicant’s appeal on sentence on the basis that the sentence meted was a mandatory minimum sentence. The sentence of the Applicant was accordingly set aside. Same was substituted to 15 years imprisonment to run from the date of arrest of the Applicant on 3/8/2018.
By way of this present application, the Applicant seeks of this court to revise the orders made by a Judge of a concurrent jurisdiction with this court. Revisionary Powers of this court under Article 165 of the Constitution and Section 362 of the Criminal Procedure Code, are limited to orders, findings or decisions of subordinate courts or tribunals. Neither the Constitution nor any legislation gives the High Court Judge Powers of revision over such orders, findings or decisions of a Judge of concurrent jurisdiction.
In the circumstances, I find the application of the Applicant dated 12/5/2023 totally incompetent and lacking in merit. I dismiss the same wholly.
It is so ordered.
Dated, signed and Delivered at Siaya this 11th Day of April, 2024
D.O. OGEMBO
JUDGE
11/4/2024
Court
Read out in court in presence of Applicant and Mr. Baraza for State.
D.O. OGEMBO
JUDGE
11/4/2024