[2020] KEHC 3764 (KLR)
The court held that it lacks jurisdiction to entertain a resentencing petition where the petitioner has not exhausted all appellate remedies. The principles in Francis Karioko Muruatetu & Another v Republic only apply to instances where the party has exhausted the appellate process. Since the petitioner had not done...
Source-derived case information.
- Citation
- [2020] KEHC 3764 (KLR)
- Parties
- Applicant: Alex Kyalo Mutua; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Petition 2 of 2020
- Procedural Posture
- Constitutional Petition / Ruling on Petition for Resentencing
- Outcome
- petition dismissed
- Judges
- A Mabeya
- Legal Topics
- Defilement Offence, Resentencing, Appellate Jurisdiction, Sexual Offences Act
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Alex Kyalo Mutua
Applicant
Republic
Respondent
Procedural Posture
Constitutional Petition / Ruling on Petition for Resentencing
Legal Issues
- 1 Whether the petitioner is entitled to resentencing before exhausting appellate remedies.
- 2 Whether the principles in Francis Karioko Muruatetu & Another v Republic apply to the petitioner.
Ratio Decidendi
The court held that it lacks jurisdiction to entertain a resentencing petition where the petitioner has not exhausted all appellate remedies. The principles in Francis Karioko Muruatetu & Another v Republic only apply to instances where the party has exhausted the appellate process. Since the petitioner had not done so, the petition for resentencing was premature and could not be entertained by the court.
Court Disposition
petition dismissed
Orders
- The petition is dismissed as premature.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MERU
PETITION NO. 2 OF 2020
ALEX KYALO MUTUA ….…………………………. PETITIONER
VERSUS
REPUBLIC ………………………………………….. RESPONDENT
R U L I N G
1. Alex Kyalo Mutua (“the petitioner”) was charged with the offence of defilement contrary to Section 8 (1) as read with section 8 (2) of the Sexual Offences Act. He was found guilty of the offence before the trial court and sentenced to twenty (20) years imprisonment.
2. He appealed against the aforesaid decision in Criminal Appeal No. 160 OF 2017 which was dismissed.
3. Vide a petition filed on 17/2/2020, the petitioner prays this court to commute the sentence and take into account that the time he had previously spent in custody. He cites the case of Yawa Nyale v Republic [2018] eklr, Daniel Otieno Yugi v Republic Cr. Appl No. 8 of 2015-Machakos, Ahamad Abolfathi Mohammed & Another v Republic [2018]eklr in support of his petition.
4. The Respondent did not oppose the application.
5. Resentencing have been as a result of the Supreme Court’s decision in Francis Karioko Muruatetu & Another v Republic [2017] eKLR where the court held the mandatory nature of the death sentence to be unconstitutional.
6. The principles set out in Francis Muruatetu’s case (supra) as read together with Section 364 (5) of the Criminal Procedure Code limits the jurisdiction of this court to instances of resentencing only when the party has exhausted his chances of appeal. Only then that a petitioner can seek resentencing in instances set out in the Muruatetu case. That is not the case in this petition.
7. To the extent that the petitioner has not exhausted his appellate rights, the petition is premature and is therefore dismissed.
DATED and DELIVERED at Meru this 30th day of July, 2020.
A. MABEYA
JUDGE