Sakwa v Republic [2022] KEHC 13881 (KLR)

Sakwa v Republic (Miscellaneous Criminal Application E007 of 2022) [2022] KEHC 13881 (KLR) (7 October 2022) (Ruling)

Neutral citation: [2022] KEHC 13881 (KLR)

Republic of Kenya

In the High Court at Bungoma

Miscellaneous Criminal Application E007 of 2022

SN Riechi, J

October 7, 2022

Between

Ferdinand Juma Sakwa

Applicant

and

Republic

Respondent

Ruling

1. The applicant with other persons were charged and convicted for the offence of robbery with violence contrary to Section 296(2) of the Penal Code vide Bungoma CMC Criminal Case No 875 of 2013. They were subsequently sentenced to suffer death thus an appeal to this court vide High Court Criminal Appeal No 54 & 56 of 2015 (Consolidated). The court (Cherere J) confirmed the conviction and reversed the sentence substituting thereof a 14-year prison term to run from March 31, 2015.

2. The applicant now moves the court for a re-consideration of sentence under the provisions of Section 333(2) of the Criminal Procedure Code on the grounds inter alia that he is now reformed and rehabilitated and that his release from prison will foster reconciliation between himself and other parties.

3. The application was disposed of by way of written submissions. Both parties filed their respective submissions and have been considered.

4. The gist of the application is for sentence re-consideration under the proviso to Section 333 (2) which states;Provided that where the person sentenced under subsection (1) has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody.

5. It is patently clear from the facts herein that the applicant has exploited the appeal process and benefited therefrom through a reduction of the sentence meted out by the subordinate court. His initial death sentence was reduced by the appellate court to a prison term of 14 years. He also benefitted from the presidential power of mercy in the year 2016 and the death sentence commuted to life imprisonment.

6. I have perused the judgment of the superior court in this matter and noted the conclusion by the learned judge in paragraph 22 of her judgement, she stated;Considering all the mitigating and aggravating factors, the period spent in pre-trial and post-trial custody and the cases I have cited, I re-sentence the petitioners to 14 years imprisonment commencing the date of sentencing before the trial court which is March 31, 2015.

7. It is therefore clear that the applicant has had the benefit of the proviso to the Section and the instant application is merely an abuse of the court process. The court cannot further review a sentence that has already been reviewed by another judge.

8. Consequently, the application is found to be without merit and is hereby dismissed.

DATED AT BUNGOMA THIS 7TH DAY OF OCTOBER, 2022S.N. RIECHIJUDGE