[2020] KEHC 3256 (KLR)
The High Court lacks jurisdiction to review or reduce the petitioner's sentence because the sentence was imposed by a court of equal jurisdiction after a retrial, and the Court of Appeal has already dismissed the petitioner's appeal. The petitioner's case does not fall within the category of cases where the High...
Source-derived case information.
- Citation
- [2020] KEHC 3256 (KLR)
- Parties
- Applicant: Benard Reuta Masake; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Constitutional Petition 102 of 2019
- Procedural Posture
- Constitutional Petition / Judgment
- Outcome
- petition dismissed
- Judges
- REA Ougo
- Legal Topics
- Sentence Review, Jurisdiction of High Court, Manslaughter Conviction, Appeal Process, Re Sentencing, Finality of Appeals
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Benard Reuta Masake
Applicant
Republic
Respondent
Procedural Posture
Constitutional Petition / Judgment
Legal Issues
- 1 Does the High Court have jurisdiction to review or reduce a sentence after the Court of Appeal has dismissed the applicant's appeal?
- 2 Is the petitioner's case eligible for sentence review or re-sentencing under the Constitution?
Ratio Decidendi
The High Court lacks jurisdiction to review or reduce the petitioner's sentence because the sentence was imposed by a court of equal jurisdiction after a retrial, and the Court of Appeal has already dismissed the petitioner's appeal. The petitioner's case does not fall within the category of cases where the High Court can review or re-sentence, as the issues raised have already been considered and determined by both the High Court and the Court of Appeal. The doctrine of finality of appeals and functus officio applies, precluding the High Court from entertaining the petitioner's application for sentence review or reduction.
Court Disposition
petition dismissed
Orders
- The petitioner's application for sentence review or reduction is dismissed.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH OF KENYA
AT KISII
CONSTITUTION PETITION NO. 102 OF 2019
BENARD REUTA MASAKE..................................................................PETITIONER
VERSUS
REPUBLIC..............................................................................................RESPONDENT
JUDGMENT
1. Bernard Reuta Masake,(‘the petitioner’)in his petition filed on the 11/11/2019 seeks sentence review on grounds that this court exercises its jurisdiction under Article 23 (1) as read with Article 165 of the Constitution to order for a reduction/ review of the 40 years imprisonment. That the court be pleased to consider the five (5) years so far served by the petitioner in prison and rehabilitative programmes undertaken by the petitioner since the occurrence of the offence in 2007.
2. In his supporting affidavit filed in support of the petition he avers that he is currently serving 40 years for the offence of manslaughter and that he has served 5 years. That he was initially charged with the same offence and facts were read to him and he was convicted on his own plea of guilty and sentenced to serve one-year imprisonment. That after the completion of the one-year imprisonment the prosecution appealed against the sentence and the High Court ordered a retrial. After the retrial process the trial court sentenced him to life imprisonment on the 8th June 2011 which was later substituted to 40 years. He has exhausted all his avenues of appeal up to the Court of Appeal.
3. Mr. Otieno for the state asked the court to note that the petitioner is now serving 40 years for manslaughter.
4. The petitioner avers that his appeal was heard by the High Court and the life sentence imposed by the trial court was substituted with 40 years imprisonment. It is his submission that he appealed to the Court of Appeal. I have had the benefit of reading the Court of Appeal judgment his appeal was dismissed. Do I have the jurisdiction to reduce this sentence? It is a Court of equal jurisdiction which sentenced the petitioner to 40 years after considering his appeal. His case does not in my view fall within the category of cases where the High Court can review his sentence or re-sentence him. His appeal has already been heard by the High Court. The Court of appeal noted that he had the benefit of his sentence being reduced from life imprisonment to a term of 40 years in prison and that his mitigation was taken into account by the judge and the issue of re-sentencing did not arise. He cannot return to the High Court for a review or reduction of his sentence.
5. I find that his application has no merit and it is dismissed.
Dated, signed and delivered at Kisii this 11th day of June 2020.
R.E. OUGO
JUDGE
In the presence of:
Petitioner In Person
Mr. Otieno Senior Prosecution Counsel Office of the DPP
Ms Rael Court Assistant.