Obed Kinyua Nyaga v Republic [2021] KEHC 6437 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT EMBU

CRIMINAL REVISION NO. E001 OF 2021

OBED KINYUA NYAGA……………..............................PETITIONER

VERSUS

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

RULING

1. The applicant herein was charged with the offence of defilement in Embu Sexual Offences Case No. 11 of 2015 and he was convicted and sentenced to serve life imprisonment.

2. Following the conviction and the sentence, he filed an appeal being Criminal Appeal No. 20 of 2018, and in a judgment delivered on the 1st day of September, 2020, the High Court at Embu set aside the life sentence and sentenced him to serve imprisonment of twenty-three (23) years and nine months, after the court took into consideration the one year and three months’ period spent in custody during the pendency of the trial. The court further ordered that the sentence to commence from the date of conviction which was on 27/02/2018.

3. The applicant has now moved the court by way of an application for review of the sentence on the grounds that he is lawfully entitled to the benefit of the law and qualified for a lenient sentence as a first offender and that he is remorseful. He has thus urged the court to review the sentence downwards.

4. The applicant filed submissions which reiterate his grounds in support of the application.

5. On her part, counsel for the applicant opposed the application for the reason that the court does not have jurisdiction to revise its own order taking into account the fact the High Court heard his appeal and reduced the life sentence that had been imposed on him by the trial court.

6. The court has considered the application and all the material before it. As already pointed out in this ruling, the applicant appealed against the judgment of` the trial court and the sentence was reduced. The appeal having been heard and determined by the High Court, which is a court of concurrent jurisdiction, this court does not have jurisdiction to review that judgment.

7. In the premises, the application herein is without merit and it is hereby dismissed.

Delivered, dated andsigned atEmbuthis9th day ofJune, 2021.

L. NJUGUNA

JUDGE

…………………………..………………………..for the Applicant

…………………………………………………..for the Respondent