[2020] KEHC 8005 (KLR)
The High Court at Siaya lacks jurisdiction to entertain a petition for resentencing where the Court of Appeal has already exercised its discretion and resentenced the applicants, especially after considering the Francis Muruatetu decision. The proper forum for such a petition would have been the Kisumu High Court,...
Source-derived case information.
- Citation
- [2020] KEHC 8005 (KLR)
- Parties
- Applicant: Carilus Omondi Mboga; Applicant: Rosemary Apondi Omondi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Criminal Petition 2 of 2020
- Procedural Posture
- Constitutional Criminal Petition / Judgment
- Outcome
- petition dismissed
- Judges
- RE Aburili
- Legal Topics
- Resentencing, Death Penalty, Jurisdiction, Appeal Review
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Carilus Omondi Mboga
Applicant
Rosemary Apondi Omondi
Applicant
Republic
Respondent
Procedural Posture
Constitutional Criminal Petition / Judgment
Legal Issues
- 1 Whether the High Court at Siaya has jurisdiction to entertain a petition for resentencing after the Court of Appeal has already resentenced the applicants.
- 2 Whether the High Court can interfere with the discretion exercised by the Court of Appeal in resentencing pursuant to the Francis Muruatetu decision.
Ratio Decidendi
The High Court at Siaya lacks jurisdiction to entertain a petition for resentencing where the Court of Appeal has already exercised its discretion and resentenced the applicants, especially after considering the Francis Muruatetu decision. The proper forum for such a petition would have been the Kisumu High Court, but in any event, the matter had already been conclusively determined by the Court of Appeal. The High Court cannot interfere with or revise the sentence imposed by a superior appellate court, and therefore the petition must be dismissed for want of jurisdiction.
Court Disposition
petition dismissed
Orders
- The petition is dismissed.
- The file is hereby closed.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT SIAYA
CONSTITUTIONAL CRIMINAL PETITION NO. 2 OF 2020
(CORAM: R. E. ABURILI - J.)
CARILUS OMONDI MBOGA...................................1ST APPLICANT
ROSEMARY APONDI OMONDI.............................2ND APPLICANT
VERSUS
REPUBLIC......................................................................RESPONDENT
(Being a Petition for Revision of Sentence in Kisumu CM’s Court, Criminal Case No. 6 of 2009)
JUDGMENT
1. The documents in support of the Petition herein for resentencing show that the Petitioner had the Court of Appeal reduce his mandatory death sentence to a custodial fixed term. In addition, the original trial was vide Kisumu Chief Magistrate’s Court Cr Case No. 6 of 2009. The court with jurisdiction to consider a petition for resentencing on merit is Kisumu High Court not Siaya High Court.
2. Nonetheless, the Court of Appeal having reduced the mandatory death sentence to 30 years imprisonment on 31/10/2019, this court has no jurisdiction to interfere with the discretion of the Court of Appeal which took into account the Francis Muruatetu v Republic SC Pet. 15/2015decision on the constitutionality of the mandatoriness of death sentence.
3. This Petition is accordingly dismissed and the file is hereby closed.
4. Orders accordingly.
Dated, signed and delivered at Siaya, this 18th day of February, 2020
R.E. ABURILI
JUDGE
In the presence of:
Carilus Omondi Mboga, 1st Petitioner
Rosemary Apondi Omondi, 2nd Petitioner
Mr. Okachi, Senior Principal Prosecution Counsel for Respondent
Court Assistants: Brenda Achieng and Modestar Mutiemani