Maigeti v Republic [2022] KEHC 10737 (KLR)

Maigeti v Republic (Criminal Revision E093 of 2022) [2022] KEHC 10737 (KLR) (Crim) (13 June 2022) (Ruling)

Neutral citation: [2022] KEHC 10737 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Criminal Revision E093 of 2022

LN Mutende, J

June 13, 2022

Between

Kaaka Masara Maigeti

Applicant

and

Republic

Respondent

Ruling

1. Kaaka Masara Maigeti, the Applicant, was charged with the offence of defilement contrary to Section 8(1)(3) of the Sexual Offences Act before the Magistrate’s Court. He was convicted and sentenced to serve twenty-five (25) years imprisonment. Aggrieved, he appealed to the Superior Court, an appeal that was heard and determined by Ngenye- Macharia J. who affirmed the conviction but interfered with the sentence that was reduced to twenty years imprisonment, a judgment that was delivered on 30th May, 2018.

2. By an application dated 23th May, 2022, the applicant, seeks review of the sentence meted out. The application is premised on an affidavit deposed by the applicant where he deposes that time spent in custody as provided by Section 333 (2) of the Criminal Procedure Code (CPC) was not taken into consideration by the trial court, as he was in remand custody for two months, and, that he haS Been Rehabilitated And He Is And Ambassador Of Crime Si Poa.

3. At the hearing of the application, The State through learned Counsel Ms. Akunja opposed the application. She urged that the matter was dealt with by a court of concurrent jurisdiction which reduced the sentence and if dissatisfied, the applicant could appeal.

4. This court has revisional jurisdiction over the subordinate court which can only be exercised where the subordinate court has exercised jurisdiction not vested in it by law and/or has acted illegally or with material irregularity which must be corrected. (See Article 165 (6) (7) of the Constitution and Section 362 of the Criminal Procedure Code).

5. Section 333 (2) of the CPC provides that:Subject to the provisions of section 38 of the Penal Code (Cap. 63) every sentence shall be deemed to commence from, and to include the whole of the day of, the date on which it was pronounced, except where otherwise provided in this Code.Provided that where the person sentenced under subsection (1) has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody.

6. In its judgment, the High Court considered the question of sentence and allowed the appeal partially by reducing the sentence meted out.

7. The upshot of the above is that this court is functus officio as its mandate to determine the matter expired. I cannot purport to re-examine the decision rendered by Ngenye-Macharia J. because I will be sitting as an appellate court which is unacceptable in law.

10. Therefore, the application lacks merit and is accordingly dismissed.11. It is so ordered

DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI, THIS 13TH DAY OF JUNE, 2022. L. N. MUTENDEJUDGEIN THE PRESENCE OF:ApplicantMs Akunja for the StateCourt Assistant - Mutai