[2022] KEHC 2644 (KLR)
The High Court lacks jurisdiction to entertain the applicants' requests for resentencing because the Court of Appeal has already considered and determined the same issues, including the applicability of the Supreme Court's decision in Muruatetu. The Court of Appeal expressly declined to remit the matter to the High...
Source-derived case information.
- Citation
- [2022] KEHC 2644 (KLR)
- Parties
- Applicant: Ann Waithera Macharia; Applicant: Ruth Wanjiru Maina; Applicant: Daniel Njoroge Kimotho; Applicant: Joseph Kinyuru Kirimbi; Applicant: Eliud Kimani Mwai; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Miscellaneous Application 90 of 2019
- Procedural Posture
- Criminal Miscellaneous Application / Ruling on Application for Resentencing
- Outcome
- applications dismissed for lack of jurisdiction and as an abuse of process
- Judges
- DO Ogembo
- Legal Topics
- Resentencing, Mandatory Death Sentence, Jurisdiction of High Court, Abuse of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ann Waithera Macharia
Applicant
Ruth Wanjiru Maina
Applicant
Daniel Njoroge Kimotho
Applicant
Joseph Kinyuru Kirimbi
Applicant
Eliud Kimani Mwai
Applicant
Republic
Respondent
Procedural Posture
Criminal Miscellaneous Application / Ruling on Application for Resentencing
Legal Issues
- 1 Whether the High Court has jurisdiction to resentence the applicants after the Court of Appeal has determined their appeal and confirmed the sentence.
- 2 Whether the applications for resentencing are competent in light of the prior Court of Appeal decision.
- 3 Whether the Supreme Court decision in Muruatetu entitles the applicants to a rehearing of their sentence.
Ratio Decidendi
The High Court lacks jurisdiction to entertain the applicants' requests for resentencing because the Court of Appeal has already considered and determined the same issues, including the applicability of the Supreme Court's decision in Muruatetu. The Court of Appeal expressly declined to remit the matter to the High Court for resentencing, having considered the full mitigation on record and confirmed the death sentences. As such, the applications before the High Court are incompetent and constitute an abuse of process, as the issues raised have been conclusively determined by a superior court. The High Court is therefore bound by the finality of the Court of Appeal's decision and must...
Court Disposition
applications dismissed for lack of jurisdiction and as an abuse of process
Orders
- The applications for resentencing (Nos 151/2019, 150/2019, 90/2019, 120/2019 and 91/2019) are wholly dismissed.
- No orders as to costs.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CRIMINALMISCELLANEOUS APPLICATIONCASE90 OF 2019
DANIEL NJOROGE KIMOTHO AND 4 OTHERS...APPLICANT
VERSUS
REPUBLIC................................................................ RESPONDENT
RULING
The 5 applicants ANN WAITHERA MACHARIA, RUTH WANJIRU MAINA, DANIEL NJOROGE KIMOTHO, JOSEPH KINYURU KIRIMBI, and ELIUD KIMANI MWAI have separately moved this court by way of chamber summons applications filed on various dates. The applicants were filed as miscellaneous criminal application numbers 151/2019, 150/2019, 90/2019, 120/2019 and 91/2019, respectively. The cases of the 5 applicants being one, these applicants have been heard jointly in file number, misc. cr. No. 90/2019, Daniel Njoroge Kimotho Versus Republic.
The applicants of the 5 applicants prayed for resentencing so as to conform with the directions of the Supreme Court in Petition No. 15 of 2015, Francis Karioko Muruatetu and Another Versus Republic.
Following pleas by the applicants, the court ordered that the applicants file submissions in support of their applicants. 3 of the applicants duly complied and filed their submissions, Joseph Kinyuru Kirimbi, Daniel Njoroge Kimotho, and Eliud Kimani Mwai.In the said submissions, the applicants have raised varied mitigations and pleaded to be re-sentenced.
The prosecution has objected to these applications basically that this court lacks jurisdiction to entertain these applications as the matters raised therein had been dealt with finality by the Court of Appeal in Ann Waithera Macharia and 5 others Versus republic (2019)eKLR.
I have considered the applications of the applicants and the objection raised by the prosecution to the same. I have also carefully considered the decision of the Court of Appeal in the above appeal filed thereat by the applicants. The appeal was filed as criminal appeal No. 178 of 2016, and reported in (2019)eKLR. To be specific to the relevant issues raised in these applicants, the Court of Appeal (Justices Waki, Nambuye and Kiage) held as follows amongst others;
i. “We are now guided by the Supreme Court’s decision in Francis Karioko Muruatetu Versus Republic (2017)eKLR, that mandatory death sentence is unconstitutional. That is not to say that there are no instances when the sentence is merited.”
ii. “Because the full mitigations is on record, we do not accede to the request that the file be remitted to the High Court for a sentence rehearing.
iii. “Unless the Courts stand firmly against offences such as has happened herein, they will be contributing to the descent of humanity into the dark pit of hellish degradation.”
iv. “It is for such cold hearted killers that the penalty of death was legislated and for who the courts must declare it. The same was properly imposed and we have no reason to disturb it. We confirm and uphold it.”
The said Judgement of the Court of Appeal was delivered on 8. 2.2019, way after the Supreme Court decision in the Muruatetu case. In the said Judgment, the Court of Appeal, while dismissing the appeal of the applicants, and confirming the death sentence of the High Court, clearly noted that it was keenly aware of the jurisprudence out of the Muruatetu case. The Court of Appeal went further to reject the request of the appellants (Applicants) to have their case remitted back to the High Court for sentence rehearing.
It is for these reasons that I find in favour of the Respondent that this court lacks the jurisdiction to issue the orders prayed for in these application. The fact that the Court of Appeal dealt with finality all the issues or prayers sought in these application, makes these applications of the applicants’ incompetent as much as they are also an abuse of the process of this court. I accordingly wholly dismiss these applications (Nos 1512/2019, 150/2019, 90/2019, 120/2019 and 91/2019). Orders accordingly
D. O. OGEMBO
JUDGE
8. 2.2022.
Court:
Ruling read out (on-line) in presence of all the 5 applicants and Ms. Akunja for the state.
D. O. OGEMBO
JUDGE
8. 2.2022