[2021] KEHC 6859 (KLR)
The court found that the issue of the period spent in custody had already been considered during the previous re-sentencing, as expressly stated in the earlier judgment. The court held that the petitioners' attempt to re-litigate the same issue amounted to an abuse of the court process. The application for review...
Source-derived case information.
- Citation
- [2021] KEHC 6859 (KLR)
- Parties
- Applicant: Geoffrey Mwiti Gikunda; Applicant: Solomon Ndereba M’Irura; Applicant: Nathan Kimaita Guantai; Applicant: Zakayo Mwiti Mbui; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Criminal Petition 57 of 2019
- Procedural Posture
- Criminal Petition / Ruling on Application for Review of Sentence
- Outcome
- application dismissed as abuse of court process
- Judges
- TW Cherere
- Legal Topics
- Sentence Review, Period Spent in Custody, Abuse of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Geoffrey Mwiti Gikunda
Applicant
Solomon Ndereba M’Irura
Applicant
Nathan Kimaita Guantai
Applicant
Zakayo Mwiti Mbui
Applicant
Republic
Respondent
Procedural Posture
Criminal Petition / Ruling on Application for Review of Sentence
Legal Issues
- 1 Whether the petitioners are entitled to a further review of their sentences after a previous re-sentencing from death to 25 years' imprisonment.
- 2 Whether the period spent in custody prior to sentencing was properly considered in the previous re-sentencing.
- 3 Whether the application constitutes an abuse of court process.
Ratio Decidendi
The court found that the issue of the period spent in custody had already been considered during the previous re-sentencing, as expressly stated in the earlier judgment. The court held that the petitioners' attempt to re-litigate the same issue amounted to an abuse of the court process. The application for review was therefore disallowed, and the court emphasized the importance of finality in litigation and the need to avoid making orders in vain.
Court Disposition
application dismissed as abuse of court process
Orders
- The notice of motion dated 12th April, 2020 is disallowed.
- No further review of sentence is granted.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MERU
(CORAM: CHERERE- J.)
CRIMINAL PETITION NO. 57 OF 2019
BETWEEN
GEOFFREY MWITI GIKUNDA...................................................1ST PETITIONER
SOLOMON NDEREBA M’IRURA..............................................2ND PETITIONER
NATHAN KIMAITA GUANTAI...................................................3RD PETITIONER
ZAKAYO MWITI MBUI...............................................................4TH PETITIONER
AND
REPUBLIC...........................................................................................RESPONDENT
RULING
1) By Petition No. 16, 47, 68, 92and93of2018, the Petitioners had their sentences reduced from that of death to 25 years’ imprisonment.
2) In Petition No. 47 of 2018in which the 1st applicant was re-sentenced to 25 years, Majanja J in a judgment dated 12/7/2018 specifically stated in paragraph 10 that he had taken into consideration the period of 4 years that the petitioner therein had spent in custody.
3) In the present application, the Petitioners seek a review of the sentences on the grounds that they have acquired skills while in custody and that the 3rd and 4th Petitioners were minors at the time of conviction.
4) It is worthy to note here that a similar application dated 01st October, 2019 seeking a review of the sentence on the grounds that the court did not take into account the period spent in custody was disallowed by a ruling dated 23rd July, 2020 where Mabeya J. rendered himself as follows:
1) I am of the view and so hold that the Court was alive of its obligations under the proviso to section 333 of the Code.It must have considered the same before reducing the applicants’ sentences from that of death to 25 years’ imprisonment.
2) Accordingly, the applicants should have appealed against that decision if they felt aggrieved that the Court had not referred to that section while re-sentencing them. I reject the first prayer in the Motion under consideration. The sentences shall run from the dates of the applicants’ original sentences as ordered by the Court that revised their sentences.
5) Court orders are not made in vain. The Court does not, and ought not to be seen to make orders in vain; otherwise the Court would be exposed to ridicule, and no agency of the Constitutional order would then be left in place to serve as a guarantee for legality, and for the rights of the people.
6) Most unfortunately, by this application, the Petitioners seek to be allowed to improperly and impermissibly re-litigate endlessly on an issue that has already been determined. Litigation must surely come to an end.
7) From the foregoing analysis, I have come to the conclusion that the notice of Motion dated 12th April, 2020 is an abuse of the court and it is disallowed.
DELIVERED AT MERU THIS 20TH DAY OF MAY 2021
T. W. CHERERE
JUDGE
In the presence of-
Court Assistant - Kinoti
1st Petitioner - Present
2nd Petitioner - Present
3rd Petitioner - Present
4th Petitioner - Present
For Petitioners - N/A for Kiogora Mugambi & Co. Advocates
For the State - Ms. Mbithe