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JudgmentThe Republic AND JUSTUS KYALO KIMEU VS3 min read

The Republic AND JUSTUS KYALO KIMEU VS

High Court at Makueni High Court · · Matheka, Teresia Mumbua


JUDGEMENT ON REVISION

The applicant   was convicted   and sentenced in Makueni S.O No.  30   of 2020 and being   dissatisfied    with the decision   appealed to the High Court   at Makueni vide HCCRA No.  043 of 2021.  That appeal  was dismissed on the 27/7/2022. 

Through the Chamber Summons filed on 21st November 2022 the applicant seeks orders of review on the basis of the holding in Philip  Maingi  and five   others  Vs   Rep   Petition No. 17 of  2021  at  Machakos   High Court. He argues that constitutionality of mandatory minimum sentence raises a question  of law  under  SOA as the mandatory  nature of the sentences  deprives  court  of legitimate  its jurisdiction   and exercise of  its  discretion which does  not conform to tenets  of  trial  as  under   Articles  25(c) of the Constitution(Christopher Ochieng Vs  Republic  (2018)  Ap.  No.  93/014, COA Ap. No. 312/018 Evans  Wanjala  Wanyonyi  at  Eldoret)

In the supporting affidavit he depones  that he was arrested, tried and convicted for the offence of defilement contrary to the law and sentenced to life imprisonment that he  appealed to the  High Court and the sentence reduced to 10 years imprisonment; That having     been   aggrieved by that  decision   he filed my Misc.   Application No.  125 of 2019   at Makueni   High Court and following the recent   development   of the law in   Philip Maingi & Five   others vs Rep(2022) in Machakos    High Court. He filed a petition relying on Article 27(1), 47(1), 2(4) of the Constitution 

He filed submissions in support of the summons. Reading through the submissions I could see that the applicant was actually arguing his appeal. He draws the courts attention to the errors the trial court made in law and fact and that ultimately the charge against him was fabricated and was not proved beyond a reasonable doubt.

In his oral submissions he drew the court’s attention to the certificates he had supplied to the effect that he had reformed and needed to go home on a non-custodial sentence.  He has two certificates related to Bible Studies and one proficiency certificate from Ministry of Education. He told the court that he was serving 12 years’ imprisonment

The state submits that the applicant has not had his rights   and freedoms infringed as under Article  19(3) (a), 20(2) (a), 23(1), 27(1), 159(2)(a)(b) and  165(3) (b) (d) (1) (ii) of  the   Constitution  and therefore the orders sought are not tenable.

It is submitted it is because the applicant   is requesting   this honourable court to review the decision of a superior   court, High court at Makueni in HCCRA No. 043 of 2021.  The applicant is requesting   this honorable    court to invoke   its powers to   review   this decision under Article   165 (6)  and (7)  of  the Constitution and S. 354 of the Criminal Procedure  Code  under the powers of  review of the High Court.

Having considered the foregoing, the issue is whether the order for review is available to the applicant.

The first thing is that the applicant was not subjects to a mandatory sentence under the Sexual Offences Act. The trial Court sentenced him to 12 years’ imprisonment and not to the 15 years mandatory Sentence. That 12-year imprisonment term was upheld by this court on appeal.

The revisionary jurisdiction of this court to be exercised with respect to subordinate courts.

The applicant was not arguing a revision but an appeal and that recourse lies in the Court of Appeal

Hence, it is my view that having not been subject of a mandatory sentence, having had his appeal heard and determined by this court, this court would not entertain his application.

In the circumstances the application for revision is not successful.

It is dismissed.

Dated, signed and delivered this 21st  May 2024


    The Republic AND JUSTUS KYALO KIMEU VS The Republic AND JUSTUS KYALO KIMEU VS