(Being an Application for Sentence Review from Sentence in Siaya High Court Criminal Case No. 17 of 2017 by Hon. Justice R.E. Aburili, J dated 22/2/2023).
The Applicant, Walter Magamu has filed this Application on 8/5/2023. The application seeks revision of sentence meted out to the Applicant. In the Affidavit in support of the Application, the applicant has raised several factous of mitigation and also pleaded that the period of one year he spent in remand custody be accounted for in his sentence. The prosecution opposes this application on grounds that Applicant was sentenced by this court and so this court cannot revise its own Judgment. That the term of five years imprisonment was too lenient and the Applicant can only appeal.
I have considered this application. I have also considered the proceedings of the trial of the applicant ie HCCR Case No. 17/2017 (Siaya). The applicant was charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. In the Judgement of the court dated 22/2/2023, the charge was reduced to that of manslaughter contrary to Section 202 as read with Section 205 of the Penal Code. The court proceeded to sentence the Applicant to serve 5 years imprisonment.
In sentencing the Applicant, the court noted:-
“The prison term shall be computed taking into account the period that he has been in custody following his arrest, in line with the provisions of Section 333 (2) of the Criminal Procedure code.”
By seeking a revision of the above sentence, the Applicant is asking this court to revise the orders of a court of concurrent jurisdiction. Neither the Constitution nor any statute gives this court the jurisdiction to revise any orders of a court of concurrent jurisdiction. This would be tantamount to this court sitting on its own appeal over its own decision.
For the 2nd issue raised of the period served in custody, as seen above, the court already made a determination on the same and the issue is settled.
In conclusion, I find this application of the Applicant filed herein on 8/5/2023 incompetent and lacking in merit. I dismiss the same wholly. Orders accordingly.
Dated, signed and Delivered at Siaya this 11th Day of April, 2024
D.O. OGEMBO
JUDGE
11/4/2024
Court
Ruling read in Open Court in presence of Applicant, (Kitale Prisons) and Mr. Baraza for State.
D.O. OGEMBO
JUDGE
11/4/2024