[2020] KEHC 1485 (KLR)
The High Court lacks jurisdiction to review or resentence a conviction where the applicant has already filed a notice of appeal to the Court of Appeal and the appeal is pending. The right to resentencing under Article 50(2)(p) of the Constitution is only available if the prescribed punishment has changed before...
Source-derived case information.
- Citation
- [2020] KEHC 1485 (KLR)
- Parties
- Applicant: Geoffrey Muteti Musyoka; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 56 of 2020
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Review of Sentence
- Outcome
- application dismissed
- Judges
- BC Koech
- Legal Topics
- Review of Sentence, Jurisdiction of High Court, Right of Appeal, Resentencing, Constitutional Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Geoffrey Muteti Musyoka
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Application for Review of Sentence
Legal Issues
- 1 Whether the High Court has jurisdiction to review the applicant's conviction and sentence when an appeal is pending before the Court of Appeal.
- 2 Whether the applicant is entitled to resentencing under Article 50(2)(p) of the Constitution.
Ratio Decidendi
The High Court lacks jurisdiction to review or resentence a conviction where the applicant has already filed a notice of appeal to the Court of Appeal and the appeal is pending. The right to resentencing under Article 50(2)(p) of the Constitution is only available if the prescribed punishment has changed before sentencing, and the proper forum for any review or resentencing in this context is the Court of Appeal. Accordingly, the application for review of sentence is improperly before the High Court and must be dismissed for want of jurisdiction.
Court Disposition
application dismissed
Orders
- The application filed on 5.6.2020 is dismissed for lack of jurisdiction.
- The applicant is directed to approach the Court of Appeal for redress.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MACHAKOS
Coram: D. K. Kemei - J
MISC. CRIMINAL APPL. NO. 56 OF 2020
GEOFFREY MUTETI MUSYOKA.....APPLICANT
-VERSUS-
REPUBLIC.........................................PROSECUTOR
RULING
1. The applicant GEOFFREY MUTETI MUSYOKA brought a chamber summons filed on 5. 6.2020 seeking for review of the life sentence that was meted on him. The application is based on grounds in his supporting affidavit that he was convicted of robbery with violence by the trial court, he appealed to this court and the appeal was dismissed. He added that the death sentence is unconstitutional. On record is a notice of appeal to the Court of Appeal and there is no direction to the effect that the same had been withdrawn.
2. I have considered the application. The issues for determination are Firstly, whether the court has jurisdiction to review a conviction and Secondly, whether the applicant is entitled to resentencing. Article 50 (2) (p) and (q) of the Constitution states that the accused person has a right:
(p) to the benefit of the least severe of the prescribed punishments for an offence, if the prescribed punishment for the offence has been changed between the time that the offence was committed and the time of sentencing; and
(q) if convicted, to appeal to, or apply for review by, a higher court as prescribed by law.”
3. The right to resentencing under the above provisions is a principle of fair trial and also is subject to the law and more specifically the supreme law of the land.
4. Under the mandatory terms couched in the above provisions, right to resentencing that is allowed under Article 50(p) is permitted if the prescribed punishment had changed before sentencing. From the available record the applicant has already indicated intention to appeal to the Court of Appeal. This court has no jurisdiction to entertain the application. The jurisdiction to do so is vested with the Court of Appeal where his appeal is pending determination. The applicant is now directed to proceed and approach the Court of Appeal for redress.
5. In this regard I find that the application filed on 5. 6.2020 is improperly before the court. The same lacks merit and is dismissed.
It is so ordered.
Dated and delivered at Machakos this 24th day of November, 2020.
D. K. Kemei
Judge