[2019] KEHC 2763 (KLR)
The High Court lacks jurisdiction to resentence the petitioner in this matter because the original judgment and sentence were rendered by the same court, and entertaining the petition would amount to sitting on its own appeal. Furthermore, there is no evidence that the petitioner's appeal to the Court of Appeal was...
Source-derived case information.
- Citation
- [2019] KEHC 2763 (KLR)
- Parties
- Petitioner: Benard Okutoyi Murono; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Constitutional Petition 5 of 2019
- Procedural Posture
- Constitutional Petition / Ruling on Resentencing Application
- Outcome
- petition struck out for want of jurisdiction
- Judges
- RE Aburili
- Legal Topics
- Resentencing, Mandatory Death Sentence, Jurisdiction of High Court, Appeals Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Benard Okutoyi Murono
Petitioner
Republic
Respondent
Procedural Posture
Constitutional Petition / Ruling on Resentencing Application
Legal Issues
- 1 Whether the High Court has jurisdiction to resentence the petitioner after conviction and sentencing for murder by the same court.
- 2 Whether the petitioner's sentence is unconstitutional in light of the Supreme Court decision in Francis Karioko Muruatetu v Republic.
Ratio Decidendi
The High Court lacks jurisdiction to resentence the petitioner in this matter because the original judgment and sentence were rendered by the same court, and entertaining the petition would amount to sitting on its own appeal. Furthermore, there is no evidence that the petitioner's appeal to the Court of Appeal was withdrawn or determined, and the trial court record has not been returned to the High Court. Therefore, the petition is struck out for want of jurisdiction.
Court Disposition
petition struck out for want of jurisdiction
Orders
- The petition is struck out for want of jurisdiction.
- This file is closed.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT SIAYA
CONSTITUTIONAL PETITION NO. 5 OF 2019
(CORAM: HON. R.E. ABURILI - J)
BENARD OKUTOYI MURONO....................................................PETITIONER
VERSUS
REPUBLIC......................................................................................RESPONDENT
RULING
1. This petition seeks for resentencing of the petitioner following his conviction for murder in Siaya High Court Criminal Case No 31 of 2015 Republic Versus Julius Shikuku Murono and Bernard Okutoyi Murono, on the ground that the petitioner was sentenced to death for the offence of murder by this court (Hon J.A. Makau J.) on 30th January 2017, which sentence, according to the petitioner, was unconstitutional as espoused in the Francis Karioko Muruatetu v Republic SC Pet 15 &16 of 2015.
2. The petitioner and his brother co accused/convict Julius Shikuku Murono appealed to the Court of Appeal vide CA CR A No. 31 of 2017 and have been claiming that they withdrew the Appeal but there is no evidence of such withdrawal. The trial Court record has never been resubmitted to this court despite several reminders to the Registrar of the Court of Appeal
3. That notwithstanding, as the impugned judgment was rendered by this Court by (Hon. Makau J), this court has no jurisdiction to review the sentence imposed on the Petitioners as that would amount to sitting on its own appeal.
4. Accordingly, this petition is struck out for want of jurisdiction, and as there is no evidence from the Court of Appeal rejecting the petitioner’s appeal.
5. This file is closed
6. Orders accordingly.
Dated, signed and delivered this 6th Day of November 2019.
R.E. ABURILI
JUDGE
In the presence of:
Petitioner in person
Mr Okachi Senior Principal Prosecution Counsel for the State
CA: Winnie and Modestar