[2020] KEHC 2240 (KLR)

[2020] KEHC 2240 (KLR)

The High Court held that it was functus officio, having already determined the applicant's appeal against conviction and sentence, and therefore lacked jurisdiction to entertain a subsequent application for re-sentencing. The court further found that the Supreme Court decision in Muruatetu, which declared the mandatory death sentence unconstitutional, did not apply to the applicant's case as he was sentenced to life imprisonment under the Sexual Offences Act, not to death. Additionally, the court held that any consideration of time spent in custody under section 333(2) of the Criminal Procedure Code was misplaced at this stage, as the proper forum for such redress was the appellate court....

Citation
[2020] KEHC 2240 (KLR)
Parties
Applicant: Augustine Mwendwa Pascal; Respondent: Republic
Court
High Court
Court Station
High Court at Machakos
Jurisdiction
Kenya
Judgment Date
28 October 2020
Case Number
Miscellaneous Criminal Application 189 of 2019
Procedural Posture
Miscellaneous Criminal Application / Ruling on Re Sentencing
Outcome
application dismissed
Judges
BC Koech
Legal Topics
Defilement, Sentencing Review, Mandatory Sentences, Jurisdiction, Sexual Offences, Appeals
Source Language
English
Criminal Law Defilement Sentencing Review Mandatory Sentences Jurisdiction Sexual Offences Appeals

Case Brief

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Parties

Augustine Mwendwa Pascal

Applicant

Republic

Respondent

Procedural Posture

Miscellaneous Criminal Application / Ruling on Re Sentencing

Legal Issues

  1. 1 Whether the High Court has jurisdiction to entertain a re-sentencing application after having already determined the applicant's appeal.
  2. 2 Whether the Supreme Court decision in Francis Karioki Muruatetu & Another v Republic applies to life imprisonment sentences under the Sexual Offences Act.
  3. 3 Whether the applicant is entitled to consideration of time spent in custody under section 333(2) of the Criminal Procedure Code.

Ratio Decidendi

The High Court held that it was functus officio, having already determined the applicant's appeal against conviction and sentence, and therefore lacked jurisdiction to entertain a subsequent application for re-sentencing. The court further found that the Supreme Court decision in Muruatetu, which declared the mandatory death sentence unconstitutional, did not apply to the applicant's case as he was sentenced to life imprisonment under the Sexual Offences Act, not to death. Additionally, the court held that any consideration of time spent in custody under section 333(2) of the Criminal Procedure Code was misplaced at this stage, as the proper forum for such redress was the appellate court....

Court Disposition

application dismissed

Orders

  • The applicant’s application filed on 16.12.2019 is dismissed.