Wangaruo v Republic [2023] KEHC 25408 (KLR)

Wangaruo v Republic (Miscellaneous Criminal Application E064 of 2023) [2023] KEHC 25408 (KLR) (16 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25408 (KLR)

Republic of Kenya

In the High Court at Siaya

Miscellaneous Criminal Application E064 of 2023

DO Ogembo, J

November 16, 2023

Between

Maurice Ouma Wangaruo

Applicant

and

Republic

Respondent

(High Court (Siaya Cr. Appeal No. 1/2016) Criminal Appeal 1 of 2016 )

Ruling

1. The applicant, Maurice Ouma Wangaruo, has moved this court by way of a Notice of motion application filed herein on 6/6/2023. The application is brought under section 333(2) of the Criminal Procedure Code, and also article 165 of the Constitution of Kenya. The same seeks that the sentence be revised to account for the period spent pending determination of the case.

2. In the Affidavit in support of the application, it has been deponed that applicant was convicted and sentenced to serve 15 years imprisonment for the offence of defilement. And in the submissions in court, the applicant confirmed that his appeal against the conviction and sentence was dismissed.

3. The State opposes this application on grounds that this court is functus officio having determined the appeal of the applicant. The court was urged to dismiss this application.

4. I have considered the submissions of the 2 sides. The record of proceedings herein show that applicant was sentenced to serve 15 years imprisonment on 23/12/2015.

5. His subsequent appeal to the High Court (Siaya Cr. Appeal No. 1/2016) against both conviction and sentence was dismissed in a judgment dated 25/1/2017 by the Hon. Justice J.A. Makau.

6. This present application now seeks that this court revises the considered opinion and decision of a Judge of concurrent jurisdiction. Neither the Constitution, nor any written law gives this court any legal authority to reconsider or revise any decision of a Judge of concurrent decision. The application, is basically asking this court to sit on appeal on its judgment. This, the court has no jurisdiction to do.

7. For this reason, I find no merit in the application of the applicant filed herein on 6/6/2023. I dismiss the same accordingly. It is so ordered.

DATED, SIGNED AND DELIVERED AT SIAYA THIS 16TH DAY OF NOVEMBER, 2023. D.O. OGEMBOJUDGE16. 11. 2023Court:Ruling read out in Open court in the presence of the applicant and Ms. Mumu for State.D.O. OGEMBOJUDGE16. 11. 2023