Lebuyere v Republic [2022] KEHC 13635 (KLR)

Lebuyere v Republic (Miscellaneous Criminal Application E150 of 2021) [2022] KEHC 13635 (KLR) (4 October 2022) (Ruling)

Neutral citation: [2022] KEHC 13635 (KLR)

Republic of Kenya

In the High Court at Naivasha

Miscellaneous Criminal Application E150 of 2021

GL Nzioka, J

October 4, 2022

Between

Jeniso Lebuyere

Applicant

and

Republic

Respondent

Ruling

1. The applicant was charged vide Chief Magistrate’s Criminal Case No. 1306 of 2013, at Naivasha with the offence of Rape contrary to section 3 of the Sexual Offences Act. He was charged in the 2nd count with the offence of assault contrary to section 215 of the Penal Code. The particulars of each count are as per the charge sheet.

2. He entered a plea of not guilty, the case proceeded to a full hearing and he was subsequently found guilty on both counts, and sentence to ten (10) and one (1) years imprisonment, respectively. Being aggrieved with the conviction and sentence, he appealed against both vide High Court Criminal Appeal No. 87 of 2015. The Appeal was heard and vide a Judgment dated 26th July 2018 the appeal was dismissed in its entirety.

3. The applicant has now filed the subject application seeking for, sentence review, as aforesaid. Having considered the subject notice of motion application dated 14th October 2019, the affidavit in support thereof, and find as follows;-a.First and foremost this court is functus official, in the sense that once the Judgment on appeal was pronounced, the court lost it’s jurisdiction to revisit the matter. In particular the impugned sentence which was dealt with an appeal on that ground alone, the application cannot be allowed.b.Secondly, the issue raised herein based on section 333(2) of the Criminal Procedure Code should have been raised during the hearing of the appeal. The applicant cannot be allowed to prosecute the subject matter herein in piece meals. That amounts to an abuse of the due process of law.c.Thirdly from the record of the Judgment rendered in the High Court Criminal Appeal No. 87 of 2015, the court clearly stated that, the sentence meted of ten (10) years was statutory minimum, legal and proper. That in the court’s considered view considering the circumstances of the offence, the Appellant deserved a more severe sentence but the Director of Public Prosecution did not address the court in that regard.In view of the aforesaid, I find no merit in the subject application and dismiss it and/or dismiss it for want of prosecution. The appellant should pursue an appeal in the Court of Appeal if he is aggrieved with the judgment rendered by the High Court.It is so ordered.

DATED, DELIVERED AND SIGNED ON THIS 4TH DAY OF OCTOBER 2022. GRACE L. NZIOKAJUDGEIn the presence of:-Applicant in personMs Maingi for the stateMs Ogutu Court Assistant