Case ID:162886

Daniel Lumonyi & 2 others v Republic [2020] eKLR

Case Metadata

Case Number:

Criminal Revision 243 of 2019

Parties:

Daniel Lumonyi,Eliud Sukura Samita & Timothy Wafula Lumonje v Republic

Date Delivered:

06 Jul 2020

Case Class:

Criminal

Court:

High Court at Nairobi (Milimani Law Courts)

Case Action:

Ruling

Judge(s):

Jessie Wanjiku Lesiit

Citation:

Daniel Lumonyi & 2 others v Republic [2020] eKLR

Case History:

Being an application for review of original sentence by Hon. R. Lagat-Korir, J dated 29th November, 2018 in Nairobi High Court Criminal Case No. 30 of 2011

Court Division:

Criminal

County:

Nairobi

History Docket No:

Criminal Case 30 of 2011

History Judges:

Roseline Lagat-Korir

History County:

Nairobi

Case Outcome:

Applicants application dismissed

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CRIMINAL DIVISION

CRIMINAL REVISION NO. 243 OF 2019

LESIIT, J

DANIEL LUMONYI...........................................................................1

ST

APPLICANT

ELIUD SUKURA SAMITA...............................................................2

ND

APPLICANT

TIMOTHY WAFULA LUMONJE...................................................3

RD

APPLICANT

VERSUS

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

(Being an application for review of original sentence by Hon. R. Lagat-Korir, J

dated 29

th

November, 2018 in Nairobi High Court Criminal Case No. 30 of 2011)

RULING ON REVISION

1. The Applicants

DANIEL LUMONYI

hereinafter the 1

st

Applicant,

ELIUD SUKURA SAMITA,

the 2

nd

Applicant and

TIMOTHY WAFULA LUMONJE

the 3

rd

Applicant were convicted of one count of

manslaughter

contrary to

section 202

as read with

section 205

of the

Penal Code

. They were sentenced each to 10 (ten) years imprisonment.

2. They had initially been charged with

murder

contrary to

section 203

as read with

section 204

of the

Penal Code

. After trial, my sister R. Korir, J substituted the charge from

murder

to

manslaughter

under

section 179(2)

of the

Criminal Procedure Code

and convicted them accordingly.

3. The three Applicants filed a joint affidavit annexed to a certificate of urgency. In the affidavit they aver that they were charged, convicted and sentenced to serve ten years sentence each for the offence of

manslaughter

. That they are remorseful for the offence. That they were first offenders. That they request the sentence to commence from the day they were arrested.

4. Each Applicant emphasized the content of their joint affidavit and urged the court to consider the period they were in custody pending the trial and to review the sentence accordingly.

5. Mr. Momanyi, Learned Prosecution Counsel opposed the application on grounds the Applicants had been tried for

murder

contrary to

section 204

of

Penal Code

by a court with parallel jurisdiction as this court and so this court lacked jurisdiction to entertain the application. He urged that the Applicants should file their appeals in the Court of Appeal and that this application should be dismissed.

6. The Applicants did not invoke any law in their application. However, from their arguments, it is clear that they are requesting this court to review the sentence imposed by a court of parallel jurisdiction as this court in order to account for the period they spent in custody pending trial.

7. The power to review or to do revision is provided under

sub-section 362

to

367

of the

Criminal Procedure Code

. Under

Section 362

“the High Court may call for and examine the record of any criminal proceedings before a subordinate court …”

8. Clearly that exercise of power can only be done by the High Court respecting cases being heard by the magistrates’ court. Likewise, under

section 364

the Power of the High Court on revision is limited to proceedings before the magistrate’s court.

9. Article 165 (6) (7)

gives the High Court supervisory jurisdiction over the subordinate courts and persons, bodies of authority exercising a judicial or quasi – judicial function

“but not over a superior court”

. In exercise of that power may call for the record of any proceedings before any such subordinate court, person body or authority.

10. It is clear that the Applicants were ill informed. This court cannot exercise the power of revision against its own orders, whether sentence or otherwise. The application before this court, though not specifying the jurisdiction that was involved, is in the nature of revision or sentence review which squarely falls under

Article 165 (6)

and

(7)

of the

Constitution

and sub-

section 362

to

367

of the

Criminal Procedure Code

.

11.This court has clearly no jurisdiction to entertain the application. I agree with the Prosecution Counsel that it should be dismissed and the Applicants advised to file an appeal in the Court of Appeal.

12. In the result, the Applicants application before this court is dismissed for want of jurisdiction.

DELIVERED THROUGH TEAMS THIS 6

TH

DAY OF JULY, 2020

.

LESIIT, J

JUDGE