Martin Owuor John v Republic [2022] KEHC 1254 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MIGORI

PETITION NO. E 001 OF 2022

MARTIN OWUOR JOHN........................APPLICANT

Versus

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

JUDGMENT

The Petitioner MartinOwuor Johnwas on 25/11/2017 convicted by Mrima J, for the offence of manslaughter contrary to Section 202 of the Penal Code and sentenced to ten (10) years imprisonment.

The Petitioner has now come back before the same High Court seeking an order that the court breached Articles 27(1), 50 (2)(p) of the Constitution and did not comply with Section 333 (2) of the Criminal Procedure Code.

Article 27(1) provides as follows:-

“Every person is equal before the law and has the right to equal protection and equal benefit of the law.”

Article 50 (2) p provides as follows:-

“To the benefit of the least severe of the prescribed punishments for an offence, if the prescribed punishments for the offence has been changed between the time that the offence was committed and the time of sentencing.”

Section 333 (2) Criminal Procedure Code as follows: -

“In any case in which an order for the payment of money has been made, on non-recovery of which imprisonment may be awarded, and the money is not paid forthwith, the court may require the person ordered to make payment to enter into a bond as prescribed in subsection (1), and on default of his so doing may at once pass sentence of imprisonment as if the money had not been recovered.”

Even without going into the merits of the above provisions, I have considered the records of the proceedings before J. Mrima. The petitioner was represented by Mr. Abisai Advocate. He never raised the above issues during trial.

The Petitioner cannot purport to come back before the same court for review of the court’s orders. If he is aggrieved by the decision of J. Mrima, his recourse is to file an appeal to the Court of Appeal because this court is funtus officio this matter.

The issues he raises are deemed to have been considered by the trial court, during the trial and when sentencing. The court cannot write down each and everything that it takes into account when sentencing.

This court cannot sit on appeal on the decision of J. Mrima who presides over a court of concurrent jurisdiction. I find that the petition lacks merit and is hereby dismissed.

DATED, SIGNED AND DELIVERED AT MIGORI THIS 24TH DAY OF MARCH, 2022

R. WENDOH

JUDGE

Judgment delivered in the presence of:

Mr. Maatwa for the Respondent

Appellant present

Nyauke court Assistant