[2020] KEHC 4379 (KLR)
The court held that although it has the power to re-sentence the petitioner in light of the Supreme Court's decision in Muruatetu, it cannot do so in the absence of the necessary court records and materials. Furthermore, since the petitioner's appeal against conviction and sentence is still pending before the Court...
Source-derived case information.
- Citation
- [2020] KEHC 4379 (KLR)
- Parties
- Applicant: Erick Achiki Oreri; Applicant: Evans Nyachiro Maronga; Respondent: The Republic
- Court
- High Court
- Court Station
- High Court at Nyamira
- Jurisdiction
- Kenya
- Case Number
- Petition 33A of 2019
- Procedural Posture
- Constitutional Petition / Judgment
- Outcome
- petition struck out
- Judges
- EM Muchoki
- Legal Topics
- Resentencing, Mandatory Sentences, Robbery With Violence, Appeals Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Erick Achiki Oreri
Applicant
Evans Nyachiro Maronga
Applicant
The Republic
Respondent
Procedural Posture
Constitutional Petition / Judgment
Legal Issues
- 1 Whether the petitioner is entitled to a re-sentencing hearing following the Supreme Court decision in Francis Karioko Muruatetu & another v Republic.
- 2 Whether the absence of court records precludes the court from conducting a re-sentencing hearing.
- 3 Whether the pending appeal at the Court of Appeal affects the High Court's jurisdiction to re-sentence.
Ratio Decidendi
The court held that although it has the power to re-sentence the petitioner in light of the Supreme Court's decision in Muruatetu, it cannot do so in the absence of the necessary court records and materials. Furthermore, since the petitioner's appeal against conviction and sentence is still pending before the Court of Appeal, it is appropriate to await the outcome of that appeal before proceeding with any re-sentencing. The petition was therefore struck out, with liberty to the petitioner to re-apply once he obtains the relevant records or to pursue his appeal in the Court of Appeal.
Court Disposition
petition struck out
Orders
- The petition is struck out.
- The petitioner is at liberty to re-apply for re-sentencing upon obtaining the necessary records or to pursue his appeal at the Court of Appeal.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NYAMIRA
PETITION NO. 33A OF 2019
1. ERICK ACHIKI ORERI......................................................1ST PETITIONER
2. EVANS NYACHIRO MARONGA......................................2ND PETITIONER
-VRS-
THE REPUBLIC.............................................................................RESPONDENT
JUDGEMENT
The 1st petitioner in this case has approached this court for a sentence re-hearing in line with the decision of the Supreme Court in Francis Karioko Muruaretu & another v Republic [2017] eKLR. He alleges to have been sentenced to death for the offence of robbery with violence contrary to Section 296 (2) of the Penal Code. It is also his allegation that he appealed to the High Court which dismissed his appeal and affirmed the conviction and sentence.
During the hearing of this petition he alleged to have appealed to the Court of Appeal but the appeal is yet to be determined. His co-petitioner withdrew his petition to await the determination of the appeal.
Counsel for the respondent noting that the 1st petitioner was handed a mandatory sentence does not oppose the application for re-sentencing. However, while I am alive to the power of this court to re-sentence the 1st petitioner based on the nature and circumstances of the offence and the mitigation he has offered, I note that he has not provided me with material to do so. He has not supplied this court with any records and there is very little that this court can do in the absence of court records. Moreover, his appeal which I believe challenges his conviction and sentence by the trial court is awaiting determination by the Court of Appeal and it would do well to await that decision. Accordingly, the course that commends itself is to strike out this petition while holding that the petitioner shall be at liberty to re-apply when he receives his records and in the event that he does not, pursue his appeal at the Court of Appeal. It is so ordered.
Signed, dated and delivered in open court this 2nd day of July 2020
E. N. MAINA
JUDGE
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