REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KITUI CRIMINAL MISC. APPLICATION NO. 78 OF 2018 MUSEE KATEE............................................................................APPLICANT VERSUS REPUBLIC................................................................................RESPONDENT RULING 1. By way of Chamber Summons, the Applicant seeks an order of this Court invoking the provisions of Section 333(2) of the Criminal Procedure Code. 2. The Application is premised on grounds that the Applicant spent in custody a duration of two (2) years while undergoing trial. 3. This is a matter where the Applicant was convicted of the offence of Rape by the trial Court and sentenced to serve forty (40) years imprisonment. On appeal the High Court set aside the sentence meted out and substituted it with twenty (20) years imprisonment. 4. The Applicant filed a second Appeal which was determined on 29th September, 2017. The learned Judge of the Court of Appeal had this to state: “The prescribed sentence for the offence of rape at the material time was life imprisonment. The Appellants were sentenced to 40 years imprisonment, which on appeal was reduced to 20 years imprisonment. That sentence is lawful and no basis has been laid why we should interfere with it. The approach of this Court regarding appeals against sentence was explained as follows in Bernard Kimani Gacheru v. Republic, Cr. App. No. 188 of 2000: “It is now settled law, following several authorities by this Court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal, the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor, or took into account, some wrong material, or acted on a wrong principle. Even if, the Appellate Court feels that the sentence is heavy and that the Appellate Court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already stated is shown to exist.” 5. At the point of delivering its Judgment the High Court had finally disposed off the matter. It became functus officio. In the absence of statutory authority this Court cannot re-open the matter for purposes of dealing with the sentence meted out. 6. Consequently, the Application lacks merit and is dismissed. 7. It is so ordered. Dated, Signed and Delivered at Kitui this 3rd day of July, 2019. L. N. MUTENDE JUDGE
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