REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CRIMINAL REVISION E312 OF 2021

ROBERT KOGI MWANGI........APPLICANT

VERSUS

REPUBLIC ............................ RESPONDENT

RULING

ROBERT KOGI MWANGI, filed this present application on 28.6.2021. The said application is brought under section 333(2) of the Criminal Procedure Code. the application basically seeks that the period that the applicant spent in remand custody be accounted for in the sentence. In the affidavit in support of the application, the applicant has deponed that he had been charged with the offence of Murder contrary to section 203 as read with section 204 of the penal code. that on 6.2.2015, he was sentenced to death. That he had remained remanded in custody for 8 years.

The applicant has in this matter filed submissions in which he has raised several mitigating factors. That he is a reformed and charged man. That the trial court did not give him ample consideration. That he was not accorded fair trial as required by Article 50(2). That he is now serving an illegal sentence. He has attached several testimonials in support of his application.

In his oral submissions before court, the applicant further stated that he had remained in custody from 1.11.2011 to 12.2.2015, a period the court did not give account to. That he had already applied for resentencing before the High Court in Cr. Rev. 475/2018 and was resentenced to serve 7 years from 21.5.2019, by Justice Kimaru.

The state has opposed this application. First, on grounds that this court is functus officio as the Hon. Justice Kimaru already ruled on the same in Misc. Cr. 475/2018. It was urged that this application be dismissed.

I have considered the application of the applicant and the response by the state. I have also perused the record of proceedings herein. It is on record that the applicant was first convicted and sentenced to serve 25 years imprisonment on 12.2.2015. This was after the court considered the mitigation of the applicant. His appeal to the Court of Appeal (Cr. Appeal No. 68/2016) was subsequently dismissed on 15.12.2017.

It has now come out that the applicant filed Misc. cr. 475/2018 for revision of his sentence. Again the Hon. Justice Kimaru considered the revision application, allowed the same and resentenced the applicant to serve 7 years to run from 21.5.2019.

It is clear therefore, that the applicant was accorded the right the mitigate before he was accorded the right to mitigate before he was initially sentenced. His subsequent appeal was dismissed by the Court of Appeal. He thereafter filed for revision of the sentence, which application was allowed by the Honourable Justice Kimaru, a Judge of concurrent jurisdiction.

By this application, the application is asking this court to revise the said orders of the Hon. Justice Kimau. With respect, this court does not have the powers or jurisdiction to consider or revise any orders of a court of concurrent jurisdiction. For lack of jurisdiction, this application of the applicant filed on 28.6.2021 is incompetent, and lacks in any merit. The same is dismissed.

D. O. OGEMBO

JUDGE

22.3.2022.

Court:

Ruling read out in court (on-line) in presence of the applicant (Kamiti Medium) and Ms. Joy for the state.

D. O. OGEMBO

JUDGE

22.3.2022.