Ochieng v Republic [2022] KEHC 3243 (KLR)

Ochieng v Republic (Criminal Miscellaneous Application E045 of 2022) [2022] KEHC 3243 (KLR) (9 May 2022) (Ruling)

Neutral citation: [2022] KEHC 3243 (KLR)

Republic of Kenya

In the High Court at Siaya

Criminal Miscellaneous Application E045 of 2022

RE Aburili, J

May 9, 2022

Between

Vincent Onyango Ochieng

Applicant

and

Republic

Respondent

((Being an Application arising from conviction and sentence of Siaya in HCCRA No. 63/2019 and the Principal Magistrate’s Court at Siaya in Criminal Case No. 9 of 2019)

Ruling

1. The applicant herein is a convict in Siaya PM Cr. Case No. 9 of 2019 wherein he was sentenced to serve 15 years imprisonment for the offence of Robbery with violence. He appealed to this court vide Siaya HCRA No. 63 of 2019 which appeal was determined vide Judgment delivered on 20/7/2022 via Microsoft Teams, dismissing the appeal against conviction and sentence.

2. The court further observed that in the process of delivering judgment, the appellant urged the court to allow him to withdraw his appeal against conviction and sentence. The court ordered as follows:“Accordingly, besides this judgment which is hereby pronounced, in the alternative, and on the appellant’s own application, the appeal is wholly marked as withdrawn hence the appellant’s right of appeal is not guaranteed.”

3. This court in the said judgment did consider that “the mandatory sentence for robbery with violence is death and that the appellant was handed 15 years imprisonment on each of the two counts which was to run concurrently. That sentence is lawful and extremely lenient. It took into account the mitigation and the holding in Francis Karioko Muruatetu and anotherversusRepublic [2017]eKLR”.

4. Noting that the applicant herein was given the least severe sentence of death sentence and handed only 15 years’ imprisonment for the 2 counts of robbery with violence instead of being sentenced to death, the provisions of section 333(2) of the Criminal Procedure Code are inapplicable in the circumstances as article 50(2)(p) of the Constitution applied by the trial court overrides the provisions of the Criminal Procedure Code.

5. In addition, the applicant having withdrawn his appeal, he cannot return to this court to have a second bite at the cherry.

6. Accordingly, the application herein is found to be mischievous and devoid of any merit. It is hereby dismissed.

7. File closed.

DATED, SIGNED AND DELIVERED AT SIAYA THIS 9THDAY OF MAY, 2022R.E. ABURILIJUDGE