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High CourtDismissedBondo High Court Petition (filed 29/6/2020, arising from Bondo PM Cr. Case No. 1124/2018)

Daniel Otieno Omollo v Republic

High Court of Kenya
27 July 2020
RAR.E. Aburili
386 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A lawful sentence, especially one not mandatory, is generally protected from High Court interference unless you have properly appealed.

What this practically means

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Executive summary

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The petitioner, Daniel Otieno Omollo, was convicted of manslaughter contrary to section 202 as read with section 205 of the Penal Code and sentenced to ten years' imprisonment by the Principal Magistrate, Bondo, on 30 August 2019 in Bondo PM Cr. Case No. 1124/2018. He states that he appealed but withdrew the appeal. By a petition filed on 29 June 2020, he sought a non-custodial sentence and a reduction of sentence, claiming he was suffering. The Prosecution/Respondent opposed the petition and urged its dismissal. The court, R.E. Aburili J, identified three grounds for dismissal. First, the petition, though couched as a constitutional petition, did not meet the constitutional threshold: no violation of the petitioner's rights was alleged, and a ten-year sentence for manslaughter, whose maximum penalty is life imprisonment, is a lawful sentence. Second, sentencing is a discretion of the trial court, and since the petitioner did not receive a mandatory sentence, there could be no claim of unconstitutionality of the sentence. Third, the court held it has no power to interfere with a lawful sentence imposed on a convict who has not appealed, and the petition was not a sentence revision under sections 362 and 364 of the Criminal Procedure Code read with Article 165(6) and (7) of the Constitution. The petition was found misconceived, frivolous, vexatious and an abuse of the court process, and was dismissed with the file closed. The petitioner appeared in person virtually from prison; the State was represented by Mr. Okachi, Senior Principal Prosecution Counsel.

Key legal issues

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01

Threshold for a constitutional petition challenging sentence

Holding

The petition failed the threshold as no rights violation was alleged and the sentence was lawful.

Reasoning

The court reasoned that a 10-year term for manslaughter, whose maximum is life imprisonment, is a lawful sentence. Without an allegation of rights violation, the petition cannot be sustained as a constitutional petition.

p. 1
02

Constitutionality of discretionary sentences

Holding

Sentencing is a discretion of the trial court; a non-mandatory sentence cannot be attacked as unconstitutional.

Reasoning

Because the petitioner was not handed a mandatory sentence, there was no basis for a claim of unconstitutionality of the sentence imposed.

p. 1
03

Availability of sentence revision under sections 362 and 364 CPC

Holding

The petition was not a sentence revision as contemplated under sections 362 and 364 of the Criminal Procedure Code read with Article 165(6) and (7) of the Constitution.

Reasoning

Those provisions empower the court to call for and examine records of subordinate courts to ensure fair administration of justice, but the petition was not framed or pursued as such a revision.

p. 1

Legal principles established

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  • A petition challenging a lawful, discretionary sentence without alleging violation of rights does not meet the threshold for a constitutional petition.
  • The High Court has no power to interfere with a lawful sentence imposed on a convict who has not appealed.

Court orders

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  1. 1.The petition is dismissed
  2. 2.The file is closed
On appeal from
Principal Magistrate's Court, Bondo
Bondo PM Cr. Case No. 1124/2018
Jurisdiction invoked
Article 165(6) and (7) of the Constitution as read with sections 362 and 364 of the Criminal Procedure Code (invoked for sentence revision; court held petition did not qualify)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Daniel Otieno Omollo v Republic", Case Analysis (2020). Bondo High Court Petition (filed 29/6/2020, arising from Bondo PM Cr. Case No. 1124/2018). Source:

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.