Ochuo v Republic [2023] KEHC 25203 (KLR)

Ochuo v Republic (Criminal Petition E023 of 2023) [2023] KEHC 25203 (KLR) (9 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25203 (KLR)

Republic of Kenya

In the High Court at Siaya

Criminal Petition E023 of 2023

DO Ogembo, J

November 9, 2023

Between

Maurice Juma Ochuo

Applicant

and

Republic

Respondent

Ruling

1. The applicant, Maurice Juma Ochuo, has applied to this court by way of a Notice of motion application filed herein on 6-6-2023 for revision of his sentence. He has submitted that he had been charged and convicted of the offence of defilement and sentenced to serve 15 years imprisonment in Ukwala Criminal Case No. 10 of 2019. And that he has since undergone rehabilitation. He has submitted that the mandatory sentence meted out on him is unconstitutional. He asks for a more lenient sentence.

2. The Prosecution has submitted that this application is an abuse of the process of the court and that the applicant should only appeal.

3. I have considered this application and the submissions made by the applicant and the respondent. I have also considered the relevant proceedings regarding this matter of the applicant.

4. The record shows that the applicant was charged with the offence of Defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act. He was convicted and sentenced to serve 15 years imprisonment. This was on 1-8-2019. The applicant then filed on appeal against the conviction and sentence vide High Court Criminal No. 60 of 2019. On 16-11-2021, his appeal was dismissed both on conviction and sentence.

5. The applicant thereafter filed criminal petition number E004/2022 before this court seeking revision of his sentence and also that the court considers his rights under section 333(2) of the Criminal Procedure Code vide a ruling issued on 23/9/2022, the court observed that the Plea of the applicant for resentencing based on the Muruatetu case was misplaced as the trial court had indeed fully complied with the guidelines issued by the Supreme Court. The court, however went on to allow his application for period served in custody be considered under section 333(2) of the Criminal Procedure Code.

6. The applicant has now filed yet another application seeking re-sentencing. With respect, the High Court in its ruling of 23-9-2022 already dealt with the issue of resentencing in this matter. The said ruling and finding was made by the Hon. Justice Aburili, a Judge of concurrent jurisdiction.

7. Article 165 of the Constitution does not give this court any powers of revision over orders or findings of courts of concurrent jurisdiction. Similarly, the revisionary powers of the court under section 362 of the Criminal Procedure Code are limited only to such orders or findings of subordinated courts.

8. This matter having been adjudicated on by a court of concurrent jurisdiction, I find this application to be an abuse of the process of this court. The same is incompetent and lacking in any merit. I dismiss the same wholly.It is so ordered.

DATED, SIGNED AND DELIVERED AT SIAYA THIS 9TH DAY OF NOVEMBER, 2023. D.O. OGEMBOJUDGE