David Chimboma Wachira v Republic [2022] KEHC 1703 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MISC. CRIMINAL APPLICATION NO. 413 OF 2021

DAVID CHIMBOMA WACHIRA...............................................APPLICANT

VERSUS

REPUBLIC...............................................................................RESPONDENT

RULING AND ORDER

The applicant was convicted and sentenced to death in the trial court on a charge of robbery with violence. His appeal to the High Court was successful in that his sentence of death was quashed.

In its place this court (Kimaru, J) on 01/7/2020 in Nairobi High Court Criminal Appeal Nos. 215 of 2019 and 153 of 2017, consolidated, imposed a sentence of five years imprisonment.

The applicant has orally submitted in this court that this court has jurisdiction to hear and determine his review application.

He has also submitted that the period of three years in which he was in pre-trial custody was not taken into account in terms of Section. 333(2) Criminal Procedure Code [Cap. 75] Laws of Kenya.

Ms Joy for the respondent has opposed the application on the basis that this court does not have jurisdiction to hear and determine the application.

She in particular submitted that this court is functus officio because Kimaru, J heard and determined the issue of sentence.

It was also her submission that the only remedy available to the applicant is to appeal to the Court of Appeal.

I have considered the submissions of the parties. I find that I have no jurisdiction to entertain and determine this review application because Kimaru, J heard and determined the issue of sentence on 01/7/2020.

I further find that the only remedy available to the applicant lies in filing an appeal to the Court of Appeal.

In the premises, the application is incompetent and is hereby dismissed.

RULING AND ORDER DATED, SIGNED AND DELIVERED IN OPEN COURT AT NAIROBI THROUGH VIDEO CONFERENCE THIS 9TH DAY OF MARCH 2022.

J. M. BWONWONG’A

JUDGE

Right of Appeal explained.

In the presence of-

1. Court Assistant: Kinyua

2. Present in person for the Applicant

3. Ms Joy for the Respondent