Wanyonyi v Republic [2022] KEHC 18089 (KLR)

Wanyonyi v Republic (Miscellaneous Criminal Application E026 of 2021) [2022] KEHC 18089 (KLR) (16 December 2022) (Ruling)

Neutral citation: [2022] KEHC 18089 (KLR)

Republic of Kenya

In the High Court at Bungoma

Miscellaneous Criminal Application E026 of 2021

REA Ougo, J

December 16, 2022

Between

Joel Mkoa Wanyonyi

Applicant

and

Republic

Respondent

Ruling

1. Joel Mkoa Wanyonyi the applicant in this matter has filed a Notice of Motion seeking the court to reduce his 20 year imprisonment. The applicant was sentenced to serve 20 years for an offence of defilement. He stated that he does not intend to appeal. He relies on Section 333(2) of the CPCand the cases cited in his supporting affidavit filed in court on the 29 (1) (2). He claims that his earlier release from prison will enhance the promotion of reconciliation between him and the other parties. That he is a first offender and pleads for a 2nd chance in life. That he is the sole bread winner in his family hence they are suffering due to his incarceration. He is repentant and remorseful and he is pleading for a 2nd chance in life.

2. Miss omondi for the state opposed the application. She stated that the applicant had not appealed but was found guilty of the offence of defilement and sentenced to 20 years imprisonment. That this court should not interfere with the sentence as it was within the provisions of the law and that it is not a proper procedure to seek the orders. That he failed to file his appeal on time and this is a back door alternative to appeal.

3. For the court proceedings in SPM’S S/O NO 24/2018 the applicant admitted the offence of defilement and was convicted on his own plea of guilty and sentenced to 20 years imprisonment on the July 23, 2018.

4. The Respondent has raised the issue that the application is bad in faith. Upon conviction a person convicted of the offence can appeal on the conviction and sentence seeks a review of the sentence if the law allows. In this case the applicant has filed an application for reduction of sentence and states he does not want to appeal.

5. The applicant is seeking a review of his sentence his plea does not fall within the limitations provided for review in law under Sections 362 & 364 of HCCR. The sentence was proper in law and as submitted by the Respondent, the applicant should have filed an appeal. His application is dismissed. Files is closed.

DATED, SIGNED, AND DELIVERED AT BUNGOMA IN OPEN COURT THIS 16TH DAY OF DECEMBER, 2022R.E. OUGOJUDGEIn the presence of:Ms Omondi – State CounselMs Wilkister – Court Assistant.Applicant : Joel Mkoa Wanyonyi – present online.