Nzioka v Republic [2023] KEHC 24157 (KLR)

Nzioka v Republic (Criminal Revision E123 of 2022) [2023] KEHC 24157 (KLR) (16 October 2023) (Ruling)

Neutral citation: [2023] KEHC 24157 (KLR)

Republic of Kenya

In the High Court at Makueni

Criminal Revision E123 of 2022

GMA Dulu, J

October 16, 2023

Between

Stanslaus Wambua Nzioka

Applicant

and

Republic

Respondent

Ruling

1. Before me is an application filed by Stanslaus Wambua Nzioka, for review of sentence based on the provisions of Section 333(2) of the Criminal Procedure Code (Cap.75) seeking factoring the period in remand custody at the trial in the prison sentence.

2. The applicant has relied on the case of Vincent Sila Jona & 87 Others =Versus= Republic Petition No. 15 of 2020 to support his request.

3. The application was filed with a supporting affidavit of the applicant in which it was stated the applicant is now serving 15 years imprisonment for robbery with violence contrary to Section 296 (2) of the Penal Code, and that he was arrested on 26th March 2014 and was in custody until 5th November 2015 a period of 1 year and 7 months, and that the said period was not factored in the prison sentence. The applicant cited the case of Protus Bukiba Shikuku =Versus= Attorney General(2012) eKLR.

4. The application was canvassed through written submissions. In this regard, I have perused and considered the submissions filed by the applicant as well as the submissions filed by the Director of Public Prosecutions.

5. I note that in the submissions, the applicant has relied on the cases of Wilson Mwololo Masesi =Versus= Republic – Criminal Appeal No. 2 of 2020 – Makueni High Court, the case of Bethwel Kibor =Versus= Republic(2009) eKLR, and the case of Vincent Sila Jona & 87 Others =Versus= Republic– Petition No. 15 of 2020.

6. In their submissions, the Director of Public Prosecutions has opposed the application and stated that this was an aggravated offence in which the victim was forced to relocate to Moyale town because of the acts of the applicant.

7. Having considered the application, documents filed, the submissions on both sides and the law, I am of the view that this application for review of sentence is not merited and is for dismissal.

8. The reason why this application is for dismissal is that it seeks for review of a substantive decision on sentence already made to review the same sentence.

9. This is because from what has been placed or disclosed to me herein, this matter arose from a criminal trial in Makueni SRM Criminal Case No. 153 of 2014 wherein the applicant was tried and convicted for robbery with violence and sentenced to suffer death.

10. The appellant thereafter appealed to the High Court in Makueni High Court Criminal Appeal No. 20 of 2017 which appeal was substantively heard and dismissed on 8th June 2017.

11. Thereafter, the petitioner filed Makueni High Court Criminal Application No. 16 of 2019 for review of the sentence in which the High Court reduced the death sentence to fifteen (15) years imprisonment.

12. In my view therefore, the applicant having been lucky to have had his sentenced reviewed substantively downwards as above, and not on appeal but on exercise of discretionary revision powers of this court, cannot come again to this same court through seeking further review orders on the same sentence.

13. In my view, the petitioner is attempting to abuse the process of the court, which should not be condoned.

14. I thus find no merits in the application and dismiss the same and decline to issue the orders sought.

DATED, SIGNED AND DELIVERED THIS 16TH DAY OF OCTOBER 2023 VIRTUALLY AT VOI.GEORGE DULUJUDGEIn the presence of:-Alfred – Court AssistantApplicantMr. Kazungu for State