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Judgmenttitus ratemo ongori VS The Republic3 min read

titus ratemo ongori VS The Republic

High Court at Kisii High Court · · Odera Teresa Achieng


INTRODUCTION

  1. The Appellant herein filed a Petition of Appeal on 25th May, 2023 against the decision rendered by Hon. P. K Mutai (PM) in Kisii Chief Magistrate Court Criminal case Number. E064 of 2023 convicting him on his own plea of guilty and sentencing to four (4) years in prison for the offense of stealing a motorcycle contrary to section 278 of the Penal Code. In his grounds of appeal the appellant stated that pleaded guilty to the charge and did not have an issue with the conviction safe for the 4 year sentence the trial court had imposed on him. He stated too that he was remorseful and urged the court to consider reducing his sentence or to consider subjecting him to CSO.
  2. The court directed that the Appeal be disposed of by way of written submissions. The appellant filed its submission on 5th November, 2023 while the Prosecution filed their submissions on 25th October, 2023.
  3. The Appellant in his submissions argued that he is a boda boda rider who lives from hand to mouth. He disclosed that he had a wife and two little children but the wife deserted him the moment he was convicted of the offense. He decried that he is a total orphan having lost his mother in 2000 and his father in 2016 and as he dropped out of school. Further he stated that for the period he has been in prison he remarkably changed his ways and has actually enrolled for vocational training in prison wherein in he is yet to be issued with a certificate by Nita. Aside from the training, he said that he has transformed spiritually.
  4. For those reasons he urged the court consider reducing his sentence or in the alternative substitute his sentence with a non-custodial sentence.
  5. The learned prosecution counsel on his part submitted that the sentence for stealing a motor cycle to which the Appellant pleaded guilty attracts a sentence of 7 years imprisonment and thus a 4 year imprisonment was proper and legal. He revealed that prior to the Appellant filing this Appeal he had approached this court seeking for a review of his sentence.
  6. The learned counsel revealed further that this court ordered for a probation officer report. The report which was later filed indicated that there was a likelihood of the Appellant being lynched by the members of the community where he comes from. He contended that the in the strength of the probation report this court declined to allow the Application for review.
  7. He thus contended that the Appeal lacked merit and urged the same to be dismissed.

DETERMINATION

  1. I have considered the Petition Appeal before me and the submissions of the parties and have established that the sole issue of determination is whether the sentence of the Appellant should be reviewed.
  2. The Prosecution has disclosed that Appellant had prior to filing this Appeal approached to this court seeking to review his sentence. I can confirm that it is true that the Appellant had through a review Application No. 204 of 2023 approached this court seeking to have his 4 year sentence reviewed. A perusal of the said filed on 19th June, 2023, Lady Justice Patricia Gichohi considered the Application for review as well as a probation officer report dated 8th June, 2023. She noted from the report it was outright that the community was still hostile to the Appellant and thus declined to review the sentence.
  3. Given that the Applicant had already made an Application for review of his sentence and the same was dismissed, I cannot proceed to entertain this Appeal which is basically seeking a review of the sentence. This court cannot sit on Appeal of a decision of the court of concurrent jurisdiction  decision and as such this Appeal lacks merit and the same is dismissed.
  4. Orders accordingly.
  5. DELIVERED VIRTUALLY IN THE PRESENCE OF :Accused
  6. Mr Koima for Prosecution
    CA : OIGO 
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