Oloo v Republic [2023] KEHC 25202 (KLR)

Oloo v Republic (Criminal Petition E022 of 2023) [2023] KEHC 25202 (KLR) (9 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25202 (KLR)

Republic of Kenya

In the High Court at Siaya

Criminal Petition E022 of 2023

DO Ogembo, J

November 9, 2023

Between

Simon Oduor Oloo

Applicant

and

Republic

Respondent

Ruling

1. Simon Oduor Oloo, the applicant, has applied to this court by way of a Notice of motion application for a re-sentencing. The application was filed herein on 6-6-2023. In the affidavit in support of the same, the applicant has deponed that he was charged, convicted and sentenced to life imprisonment by the SPM’s court, Siaya. That his appeal to the High Court was dismissed.

2. The applicant has filed written submissions in which he raises various factors of mitigation and especially that he has rehabilitated. He has also challenged the legality of mandatory sentences. He has quoted the case of Simon Kipkurui Vs R(2019) and also Jared Koita Injiri Vs R, Criminal Appeal No. 93 of 2014.

3. He has pleaded for setting aside of the life sentence and a lesser sentence.

4. The Prosecution has pleaded that this application be dismissed as the applicant can only appeal to the Court of Appeal.

5. I have considered this application of the applicant. I have also considered the submissions of the 2 sides. And also the record of proceedings of both the trial court and the appeal before the High Court.

6. The applicant was charged, tried, convicted and sentenced to life imprisonment for the offence of defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offence Act. This was vide Siaya S.O. case No. 68 of 2019. He was sentenced on 17-11-2021. He appealed to the High Court vide Criminal Appeal No. E026 of 2021(SO). His appeal was dismissed in a judgment read out on 23/3/2022. It was dismissed both on conviction and sentence.

7. The proceedings before the trial court clearly shows that the applicant, prior to being sentenced, was given the opportunity to mitigate which he did on 28/10/2021 when he stated:“I have a wife and 3 children. 1 child has some disability. I was framed but I never committed this offence. My wife left with her children to South Nyanza. I ask the court to help me. I did not commit the offence. I want to be set free to continue with life with my family. My mother is still alive. I am the one who was taking care of her.”

8. The trial court duly considered the mitigation in satisfaction of the guidelines of the Supreme Court issued in the Muruatetu case.

9. his court in its judgment on appeal clearly dealt with the issues of the life imprisonment imposed on the applicant.

10. At paragraph 61 of the Judgment, the Hon. Justice Aburili, held;“Accordingly, the sentence of life imprisonment as provided for the section 8(2) of the Sexual Offences Act remains legal and constitutional.”

11. This application therefore raise the same issues that this court already dealt with at the appeal filed by the applicant. This court has neither the constitutional nor legal authority and jurisdiction to revise or reconsider a finding, order or judgment of a Judge of concurrent jurisdiction. That would be tantamount to asking this court to sit on appeal over its own decision. It would be spurious. Just as it would be unconstitutional and illegal. I decline the applicant’s invitation.

12. I do not find any merit in the application of the applicant filed herein on 6/6/2023. I dismiss the same wholly. It is so ordered.

DATED, SIGNED AND DELIVERED AT SIAYA THIS 9TH DAY OF NOVEMBER, 2023. D.O. OGEMBOJUDGE9. 11. 2023Court:Ruling read out in Open court in the presence of the applicant (Kisumu Maximum) and Mr. Kubebea for State.D.O. OGEMBOJUDGE9. 11. 2023