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Mugendi v Republic (Criminal Revision E252 of 2022) [2022] KEHC 16229 (KLR) (8 December 2022) (Ruling)
Neutral citation:
[2022] KEHC 16229 (KLR)
Republic of Kenya
Criminal Revision E252 of 2022
JN Onyiego, J
December 8, 2022
Between
Alfred Mugendi
Applicant
and
Republic
Respondent
(From original conviction and sentence in Criminal Case No. 508 of 2014 of the Principal Magistrate’s Court at Voi)
Ruling
1.The applicant herein was charged with the offence of attempted defilement contrary to section 9(1)(2) of the Sexual Offences Act number 3 of 2006. Particulars are that on June 22, 2006 at [particulars withheld] intentionally attempted to cause his penis to penetrate the vagina of JM a child aged 16 years.
2.He was in the alternative charged with committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act Number 3 of 2006. Having denied the charge, a plea of not guilty was entered.
3.The matter then proceeded to full hearing. He was consequently found guilty of the main count and sentenced to 14 years imprisonment with hard labour. Aggrieved by the sentence, he appealed to the High Court vide Criminal Appeal Number 4 of 2016 Voi High Court. On June 20, 2017 the High Court dismissed the appeal and upheld the conviction.
4.The sentence of 14 years with hard labour was however substituted with 14 years imprisonment without hard labour. Mr Sirima for the state opposed the application stating that the appeal against the sentence was dealt with hence raising the issue again is an abuse of the court process.
5.I have considered the application herein, original court record and submissions by both parties. This court’s powers to exercise supervisory powers are anchored under article 165 (6) and (7) of the Constitution and section 362 and 364 of the CPC which confers powers to the High Court to call for or examine the record in criminal proceedings in such subordinate courts so as to satisfy itself as to the correctness, legality and propriety of the sentence passed or order made and the regularity of the proceedings.
6.In the circumstances of this case, the applicants appeal having been determined on merit, he should have appealed if he was dissatisfied. To come back to this High Court to seek a remedy through the review of period spent in remand custody is an abuse of the court process.
7.Litigation of criminal proceedings must come to end. To entertain the application herein is to encourage abuse of the court process. Accordingly, application is dismissed. Right of appeal 14 days.
DATED SIGNED AND DELIVERED IN OPEN COURT THIS 8TH DAY OF DECEMBER, 2022.……………………HON J ONYIEGOJUDGE
