[2021] KEHC 4441 (KLR)
The court held that it lacked jurisdiction to entertain the petition for resentencing because the matter had already been determined by the High Court in Mombasa, a court of concurrent jurisdiction, which had varied the petitioner.s sentence from life imprisonment to a twenty-eight-year term. The petitioner failed...
Source-derived case information.
- Citation
- [2021] KEHC 4441 (KLR)
- Parties
- Petitioner: Edward Katana Safari; Respondent: Director of Public Prosecution
- Court
- High Court
- Court Station
- High Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Petition E029 of 2021
- Procedural Posture
- Constitutional Petition / Ruling on Petition for Resentencing
- Outcome
- petition dismissed for want of jurisdiction
- Judges
- DB Nyakundi
- Legal Topics
- Resentencing, Jurisdiction of High Court, Defilement Offence, Review of Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Edward Katana Safari
Petitioner
Director of Public Prosecution
Respondent
Procedural Posture
Constitutional Petition / Ruling on Petition for Resentencing
Legal Issues
- 1 Whether the High Court has jurisdiction to entertain a second petition for resentencing after a prior determination by a court of concurrent jurisdiction.
- 2 Whether new and compelling evidence exists to justify a review of the petitioner.s sentence.
Ratio Decidendi
The court held that it lacked jurisdiction to entertain the petition for resentencing because the matter had already been determined by the High Court in Mombasa, a court of concurrent jurisdiction, which had varied the petitioner.s sentence from life imprisonment to a twenty-eight-year term. The petitioner failed to present any new and compelling evidence as required under Article 50(6) of the Constitution. Therefore, the court found no basis to review the sentence further and dismissed the petition for want of jurisdiction.
Court Disposition
petition dismissed for want of jurisdiction
Orders
- The petition is dismissed for want of jurisdiction.
Full Case Text
Judgment text and source record
34 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MALINDI
PETITION NO. E029 OF 2021
(FROM RESENTENCING PETITION NO.47 OF 2019 AT MOMBASA)
THE CONSTITUTION OF KENYA 2010(SUPERVISORY JURISDICTION AND PROTECTION FUNDAMENTAL RIGHTS AND FREEDOMS OF AN INDIVIDUAL HIGH COURT PRACTICE RULES 2013.
AND
IN THE MATTER OF ARTICLE 22 (1) OF THE CONSTITUTION
AND
IN THE MATTER OF ARTICLES 23 (1) OF THE CONSTITUTION
IN THE MATTER OF ARTICLE 19,20,21,22,23,24,25,27,28,48,50,258 AND 259 OF THE CONSTITUTION
AND
IN THE MATTER OF SECTION 8 (1) AS READ WITH 8 (2) OF THE SEXUAL OFFENCES ACT NO. 3 OF 2006.
EDWARD KATANA SAFARI...........................................................PETITIONER
VERSUS
DIRECTOR OF PUBLIC PROSECUTION................................RESPONDENT
CORAM: Hon. Justice R. Nyakundi
Edward Katana Safari – Petitioner
Mr Mwangi for the state
RULING
The Petitioner Edward Katana Safari has approached this Court by way of a Petition dated 31st March, 2021 seeking a review of twenty-eight-year (28) prison sentence.
In the present petition the petitioner put two grounds; first that due to his health status he finds it impossible to serve prison sentence.
Secondly, the review sentence be considered pursuant to the provisions under Article 50(2), (a) of the Constitution it remains however inconsistent upon this court to made the following clarification. The petition was charged, tried, convicted and sentenced to life imprisonment for the offence of defilement contrary to section 8 (1) as read with section 8 (2) of the Sexual Offences Act No. 3 of 2006. He was aggrieved with the conviction and sentence which culminated in his filing an appeal to the High Court and subsequently an appeal which was dismissed for want of merit the petitioner did not stop there but proceeded to lodge a constitutional petition at Mombasa referred as Petition No. 47 of 2019. The position taken by the session judge in that petition was to vary the life imprisonment to a term imprisonment of twenty eight years form the date of arrest.
The question I pause is whether the Court has the jurisdiction to entertain the petition once more.
Determination
Now I come into an controversial area on re-sentencing where does the court draw its jurisdiction from to exercise authority to entertain a petition on re-sentencing Article 23(1) of the High Court has jurisdiction in accordance with Article 165, to hear and determine application for redress of a denial, violation or infringement of or threat to, a right or fundamental freedom in the bill of rights. The fundamental provisions on re-sentencing are earnestly provided for under Article 50 (2) (p) (q) of the Constitution as read with Article 50 (6) (a) and (b) of the Constitution.
The defined circumstances in 50 (6) of the Constitution are the ones applicable to the present petition. It is clear from the High Court that Mombasa High Court being of concurrent jurisdiction has already heard and determined the petition. In the present petition determined, I find no further new and compelling evidence that has become available to entertain the issues on review of sentence.
For those reasons I dismiss the petition for want of jurisdiction. The Petition for now is lost. It is so ordered.
DATED, SIGNED AND DELIVERED AT MALINDI THIS 30TH DAY OF JULY, 2021
............................
R. NYAKUNDI
JUDGE
In the presence of
The Petitioner
Mr Mwangi for the state