Susa v Republic [2022] KEHC 3043 (KLR)

Susa v Republic (Miscellaneous Application 9 of 2020) [2022] KEHC 3043 (KLR) (5 May 2022) (Ruling)

Neutral citation: [2022] KEHC 3043 (KLR)

Republic of Kenya

In the High Court at Migori

Miscellaneous Application 9 of 2020

RPV Wendoh, J

May 5, 2022

Between

Francis Wasonga Susa

Applicant

and

Republic

Respondent

Ruling

1. Wasonga Francis Susa, the applicant, has filed this application under Article 1, 50 (6)(b) of the Constitution and Section 200 Criminal Procedure Code seeking to call new compelling evidence which has become available to him. He also prayed for a reduction of sentence. In his oral submission in court, the applicant requested for a reduction of sentence or that he be placed on probation.

2. The prosecution counsel Mr. Kerongo Maatwa, filed submissions opposing the application. He argued that the applicant was convicted for the offence of defilement contrary to Section 8 (1) as read with Section 8(4) of the Sexual Offences Act and was sentenced to fifteen (15) years imprisonment in Migori Criminal Case 354 of 2012; that the applicant appealed to the High Court and the appeal was dismissed; Counsel urged that the court that dismissed the appeal is of concurrent jurisdiction as this court and his appeal having been considered on merit, this application is an abuse of the court process and is therefore bad in law and should be dismissed.

3. I have confirmed that indeed the applicant was convicted by the trial court in Migori Criminal Case 354 of 2012 and sentenced to fifteen (15) years. The applicant filed an appeal in Criminal Appeal 91 of 2014. Justice Majanja read the judgment of the court on 13/2/2015. The applicant did not avail a copy of the High Court judgment ther is no copy of the judgment on record. However, I believe the appeal was dismissed and that is why he is still in prison and still wants his sentence reduced. I do agree with the submission of the judgment of J. Majanja and the copy was missing from the court file. However, I believe the appeal was dismissed and that is why the applicant is still in prison and still wants the sentence reduced. I do agree with the submission by the respondent that this application is an abuse of the court because the court that heard the appeal is of concurrent jurisdiction with this court. If the applicant is dissatisfied with the Justice Majanja’s decision, he should appeal to the Court of Appeal. From the court record, the High court did explain to the applicant the right of appeal. The applicant cannot purport to reopen his case. The grounds he raises now should have been raised on appeal. If this court were to consider the grounds raised by the applicant, it would be sitting on appeal on Justice Majanja’s decision. This court has no such jurisdiction.

4. This court is functus officioof the matter. The application is therefore misplaced, bad in law and an abuse of the court process. I hereby dismiss it in its entirety.

DATED, SIGNED and DELIVERED AT MIGORI THIS 5TH DAY OF MAY, 2022R. WENDOHJUDGERuling delivered in the presence ofMr. Omooria for the Respondent.Appellant present in person.Ms. Nyauke: Court Assistant.