[2019] KEHC 886 (KLR)
The High Court held that it lacked jurisdiction to resentence the petitioner because it had already dismissed his appeal on both conviction and sentence, rendering it functus officio. The proper avenue for challenging the decision was an appeal to the Court of Appeal, not a fresh petition for resentencing before the...
Source-derived case information.
- Citation
- [2019] KEHC 886 (KLR)
- Parties
- Appellant: Albert Otieno Onyango; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Constitutional Petition 39 of 2019
- Procedural Posture
- Constitutional Petition / Ruling on Petition for Resentencing After Dismissal of Appeal
- Outcome
- petition dismissed
- Judges
- RE Aburili
- Legal Topics
- Defilement Offence, Resentencing Jurisdiction, Functus Officio, Abuse of Court Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Albert Otieno Onyango
Appellant
Republic
Respondent
Procedural Posture
Constitutional Petition / Ruling on Petition for Resentencing After Dismissal of Appeal
Legal Issues
- 1 Whether the High Court has jurisdiction to resentence a convict after dismissal of his appeal on conviction and sentence.
- 2 Whether the petition for resentencing constitutes an abuse of court process.
Ratio Decidendi
The High Court held that it lacked jurisdiction to resentence the petitioner because it had already dismissed his appeal on both conviction and sentence, rendering it functus officio. The proper avenue for challenging the decision was an appeal to the Court of Appeal, not a fresh petition for resentencing before the same court. The court found the petition to be misconceived, frivolous, vexatious, and an abuse of court process, and accordingly dismissed it. The petitioner was ordered to serve the sentence imposed by the trial court.
Court Disposition
petition dismissed
Orders
- The petition for resentencing is dismissed.
- The petitioner shall serve the sentence imposed in Siaya P.M.'s Court Cr. Case No. S.O. No. 1 of 2015.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT SIAYA
CONSTITUTIONAL PETITION NO. 39 OF 2019
ALBERT OTIENO ONYANGO..................................................PETITIONER
VERSUS
REPUBLIC..................................................................................RESPONDENT
RULING
1. This Petition for resentencing is found on the face of it to be misconceived, frivolous, vexations and as abuse of court process as the petitioner was convicted of the offence of defilement and sentenced to serve 10 years imprisonment.
2. He appealed before this court and lost his appeal. Instead of challenging the decision of this court before the Court of Appeal, he has come back for resentencing. This is misconceived. The court is functus officiohaving dismissed his appeal on conviction and sentence, it cannot purport to resentence him.
3. He concedes that Siaya HCRA 162 of 2016 was dismissed by this court, albeit the 10 years imprisonment was mandatory, there is no jurisdiction for this court to resentence him where he has not exhausted the appeal mechanisms.
4. Accordingly, this petition which seeks to open a Pandora box for all other convicts is hereby found to be mischievous. The same is dismissed. The Petitioner to serve the sentence imposed in Siaya P.M’s Court. Cr. Case No. S.O. No. 1 of 2015 as per his Petition.
5. This file is closed.
6. Orders accordingly.
Dated, Signed and Delivered at Siaya this 19th Day of November, 2019
R. E. ABURILI
JUDGE
In the presence of:
Petitioner in person
Mr. Ngetich prosecution Counsel for the Respondent
CA: Brenda and Modestar