[2023] KEHC 23408 (KLR)
The High Court declined to proceed with the resentencing petition because the applicant failed to disclose the outcome of his appeal at the Court of Appeal, and there was no evidence before the court as to whether the appeal had been determined or withdrawn. The court held that it could not entertain the application...
Source-derived case information.
- Citation
- [2023] KEHC 23408 (KLR)
- Parties
- Applicant: Patrick Makokha Buluma; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Criminal Petition 5A of 2022
- Procedural Posture
- Criminal Petition / Ruling on Application for Resentencing; Petition Postponed Pending Clarification on Status of Appeal
- Outcome
- Petition postponed; no determination on merits pending clarification of status of appeal at the Court of Appeal.
- Judges
- WM Musyoka
- Legal Topics
- Resentencing, Robbery With Violence, Life Imprisonment, Constitutionality of Sentences
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Patrick Makokha Buluma
Applicant
Republic
Respondent
Procedural Posture
Criminal Petition / Ruling on Application for Resentencing; Petition Postponed Pending Clarification on Status of Appeal
Legal Issues
- 1 Whether the High Court can entertain a resentencing petition where the status of a pending appeal at the Court of Appeal is unclear.
- 2 Whether the commutation of a death sentence to life imprisonment and subsequent constitutional developments affect the petitioner.
Ratio Decidendi
The High Court declined to proceed with the resentencing petition because the applicant failed to disclose the outcome of his appeal at the Court of Appeal, and there was no evidence before the court as to whether the appeal had been determined or withdrawn. The court held that it could not entertain the application for resentencing until the status of the appeal was clarified. The court also noted that the petitioner's death sentence had been commuted to life imprisonment, and that recent appellate authority had declared mandatory life imprisonment unconstitutional, but these issues could only be addressed once the procedural posture was regularized.
Court Disposition
Petition postponed; no determination on merits pending clarification of status of appeal at the Court of Appeal.
Orders
- Records from the Court of Appeal in Kisumu CACRA No 291 of 2012 to be made available or the petitioner to update the court on the status of that appeal.
- Matter to be mentioned on a future date for further directions.
Full Case Text
Judgment text and source record
18 paragraphs
Buluma v Republic (Criminal Petition 5A of 2022) [2023] KEHC 23408 (KLR) (13 October 2023) (Ruling)
Neutral citation: [2023] KEHC 23408 (KLR)
Republic of Kenya
In the High Court at Busia
Criminal Petition 5A of 2022
WM Musyoka, J
October 13, 2023
Between
Patrick Makokha Buluma
Petitioner
and
Republic
Respondent
Ruling
1. The Motion and petition, filed herein on November 25, 2021, seeks re-sentencing. The petitioner had been convicted in Busia CMCCRC No 1231 of 2003, on 1 count of robbery with violence, and was given the mandatory death penalty and another count of rape, and was sentenced to 15 years imprisonment, which was stayed. The sentences were imposed on November 24, 2008. His appeal, in Busia HCCRA No. 11 of 2009, was not successful. The heading of the application and the Motion indicates that the petitioner filed an appeal at the Court of Appeal, being Kisumu CACRA No 291 of 2012, but he has not disclosed what became of the appeal. I have not seen a copy of the judgment from that appeal, or a notice of withdrawal of the appeal. As there is no record of what happened at the Court of Appeal, and the petitioner has not made any averments on it in his affidavit, I will not proceed to consider the review application.
2. I also notice that the death sentence is no longer hanging over the head of the petitioner, as he avers that it was commuted to life imprisonment by the President of the Republic, on August 3, 2009. I will only entertain this petition on account of the decision of the Court of Appeal, inJulius Kitsao Manyeso v RepublicMalindi CACRA No 12 of 2021 (Nyamweya, Lesiit & Odunga, JJA), that the sentence of life imprisonment is unconstitutional.
3. Let records from the Court of Appeal in Kisumu CACRA No 291 of 2012 be made available, or otherwise let the petitioner update this court on the status of that appeal. Otherwise, for now, the petition is postponed. I shall allocate a date for mention of the matter for further directions.
RULING DELIVERED, DATED AND SIGNED IN OPEN COURT AT BUSIA ON THIS 13TH DAY OF OCTOBER 2023WM MUSYOKAJUDGE