Mwanzia Wambua v Republic [2022] KEHC 2520 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MAKUENI

HC. MISC.CR. APPLICATION NO. 68 OF 2019

MWANZIA WAMBUA………………….……………..….…. APPLICANT

-VERSUS-

REPUBLIC………….……………………………..….….. RESPONDENT

RULING

1. The applicant has come to this court through a petition requesting that his sentence be reviewed in line with the provisions of section 333 of the Criminal Procedure Code (cap.75) and Article 50(2) of the Constitution.

2. In brief his request is that the period he was held in custody during trial be reduced from the sentence that was meted upon him.

3. I have not been availed the proceedings and judgment of the trial court, nor the judgment of his appeal to the High Court. I have however been availed the judgment of the Court of Appeal in Nairobi Criminal Appeal No. 81 of 2017 delivered on 24th January 2020.

4. In the appeal judgment from the Court of Appeal, it is acknowledged that the High Court appeal was Machakos HCCRA 295 of 2010, and that the judgment therein was delivered on 8th October 2015.

5. I note that in  the concluding paragraph of the Court of Appeal judgment, it was stated as follows –

“For all the foregoing reasons, we reject the appeal on conviction but allow that on sentence to the extent that the enhanced term of life imprisonment is set aside and in its place the original sentence of forty (40) years imposed by the trial court is reinstated”

6. From the foregoing decision of the Court of Appeal, it is clear to me that the issue of the sentence imposed on the appellant was a live issue on appeal in the High Court and in the Court of Appeal, and both courts considered and made a determination on the issue. Thus in my view, the issue of section 333 Criminal Procedure Code on sentence cannot arise now in a separate side application or petition, as comprehensive determination on the aspects of the sentence imposed on the applicant herein, was made in the first appeal in the High Court, and also second appeal in the Court of Appeal, and was thus concluded.

7. I thus find no merits in this application for review of sentence, the same is hereby dismissed.

Delivered, signed & dated this 9th day of February 2022, in open court at Makueni.

……………………………….

George Dulu

Judge