[2019] KEHC 3227 (KLR)
The High Court found that it had already addressed the applicant's case with finality on 19th January 2016 and thus became functus officio. The applicant's recourse was to the Court of Appeal, where he had filed an appeal. The High Court could not reconsider the sentence while the matter was or had been before the...
Source-derived case information.
- Citation
- [2019] KEHC 3227 (KLR)
- Parties
- Applicant: Daniel Isika Mulwa; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kitui
- Jurisdiction
- Kenya
- Case Number
- Criminal Miscellaneous Application 47 of 2018
- Procedural Posture
- Criminal Miscellaneous Application / Ruling on Application for Re Sentencing
- Outcome
- application dismissed
- Judges
- LN Mutende
- Legal Topics
- Murder Sentencing, Death Penalty, Resentencing Applications
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Daniel Isika Mulwa
Applicant
Republic
Respondent
Procedural Posture
Criminal Miscellaneous Application / Ruling on Application for Re Sentencing
Legal Issues
- 1 Whether the High Court can resentence the applicant following the Supreme Court decision in Francis Muruatetu v Republic after having already passed sentence and become functus officio.
- 2 Whether the applicant's withdrawal of his appeal entitles him to resentencing by the High Court.
Ratio Decidendi
The High Court found that it had already addressed the applicant's case with finality on 19th January 2016 and thus became functus officio. The applicant's recourse was to the Court of Appeal, where he had filed an appeal. The High Court could not reconsider the sentence while the matter was or had been before the appellate court, especially as the alleged withdrawal of the appeal was not proved. The Supreme Court's decision in Muruatetu did not empower the High Court to reopen concluded matters where it was already functus officio. Therefore, the application for resentencing lacked merit and was dismissed.
Court Disposition
application dismissed
Orders
- The application for resentencing is dismissed.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KITUI
CRIMINAL MISC. APPLICATION NO. 47 OF 2018
DANIEL ISIKA MULWA.........................................................APPLICANT
VERSUS
REPUBLIC..........................................................................RESPONDENT
R U L I N G
1. Daniel Isika Mulwa,the Applicant was convicted for the offence of Murder and Sentenced to death as provided by the law.
2. On the6th dayofJuly, 2018,he approached this court by way of Chamber Summons seeking re-sentencing. He averred that the death sentence was substituted with life imprisonment following the presidential decree. His matter is pending appeal but he called upon the court to consider granting him an appropriate sentence pursuant to the Supreme Court decision in Petition No. 15 of 2015.
3. In the affidavit in support of the application, he deposed that the Supreme Court determined the issue of sentence in the alluded to Petition.
4. At the hearing, the Appellant stated that he committed the offence because he was agitated but has now reformed. That he withdrew the appeal he had filed in the court of Appeal and was now seeking a non-custodial sentence.
5. The Respondent through learned State Counsel, Mr. Mamba did not oppose the application.
6. I have considered the application and the grounds relied upon. It is not in dispute that the Supreme Court declared the death sentence unconstitutional in the case of Francis Muruatetu Vs. Republic, SC Petition No. 15 and 16 of 2015. This is however a matter where I became functus officio on the 19thday of January2016. As at that date I addressed the matter with finality. The Applicant being aggrieved preferred an appeal for the Court of Appeal which was his entitlement.
7. It is alleged but not proved that the appeal was withdrawn.
It will be important for the court of Appeal to address what is before it prior to giving directions on whether or not the sentence imposed should be reconsidered.
8. In the result, I find the appeal lacking merit. Accordingly, it is dismissed.
9. It is so ordered.
Dated, Signedand Deliveredat Kituithis11thday of September 2019.
L. N. MUTENDE
JUDGE