[2024] KEHC 2966 (KLR)
The High Court lacks jurisdiction to review or resentence where the Court of Appeal has already determined and upheld the conviction and sentence. The Resentencing Guidelines 2023 explicitly provide that only the court which last sentenced the convict has jurisdiction to entertain a resentencing application. Since...
Source-derived case information.
- Citation
- [2024] KEHC 2966 (KLR)
- Parties
- Applicant: Richard Nyamboga Gwaro; Respondent: State
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E100 of 2023
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Review of Sentence
- Outcome
- application struck out for want of jurisdiction
- Judges
- TA Odera
- Legal Topics
- Review of Sentence, Jurisdiction of Court, Resentencing Guidelines, Appeal Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Richard Nyamboga Gwaro
Applicant
State
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Application for Review of Sentence
Legal Issues
- 1 Whether the High Court has jurisdiction to review a sentence already upheld by the Court of Appeal.
- 2 Whether the application for resentencing is properly before the High Court.
Ratio Decidendi
The High Court lacks jurisdiction to review or resentence where the Court of Appeal has already determined and upheld the conviction and sentence. The Resentencing Guidelines 2023 explicitly provide that only the court which last sentenced the convict has jurisdiction to entertain a resentencing application. Since the Court of Appeal was the last court to sentence the applicant, any application for resentencing must be made to that court, not the High Court. The application before the High Court is therefore incompetent and must be struck out for want of jurisdiction.
Court Disposition
application struck out for want of jurisdiction
Orders
- The application is struck out for want of jurisdiction.
Full Case Text
Judgment text and source record
22 paragraphs
Gwaro v State (Miscellaneous Criminal Application E100 of 2023) [2024] KEHC 2966 (KLR) (6 March 2024) (Ruling)
Neutral citation: [2024] KEHC 2966 (KLR)
Republic of Kenya
In the High Court at Kisii
Miscellaneous Criminal Application E100 of 2023
TA Odera, J
March 6, 2024
Between
Richard Nyamboga Gwaro
Applicant
and
State
Respondent
Ruling
1. The applicants were charged with Grievous harm in Ogembo Criminal case no 822 of 2012 and they were convicted and sentenced to life imprisonment.
2. They were aggrieved by the said conviction and sentence and he filed an appeal in Kisii High Court Criminal case no 21 of 2014. The decision of the lower court was upheld by the High court and he again moved the court of Appeal in appeal no 20 of 2027 Kisumu. The Appeal was heard, the sentence and conviction were upheld. In upholding the sentence, the court held that the sentence was fully merited.
3. The applicants have now moved this court vide the instant application Kisii seeking a review of the said sentence. The learned prosecutor did oppose the same and urged that court of appeal already dealt with the issue of sentence and thus this court lacks jurisdiction to hear the application.
4. I carefully considered the application herein, the response by the State, the decision in appeal no 21. Of 2010, the decision of Court of Appeal in Criminal appeal no 20 of 2017 filed by the applicants herein and have also seen the re-sentencing guidelines 2023.
5. The said guidelines provide that the resentencing court is the court which last sentenced the convict. Paragraph 4. 8.18 of the said guidelines provides that “Resentencing cases shall be handled by the ‘Sentencing Court’ – e.g., if the last court that sentenced the convict was the Court of Appeal, then the resentencing hearing shall also be handled at the Court of Appeal and not a lower court. This applies mutatis mutandis to cases in either superior or inferior courts.’’
6. I totally agree with the submissions by the learned prosecution counsel that this court lacks jurisdiction on the matter as the court of appeal has already declared itself on the same. In any event, if the applicants have any issue with the sentencing they ought to move the court of Appeal.
7. The application is struck out for want of jurisdiction.
T.A ODERAJUDGE6. 3.24DELIVERED VIRTUALLY VIA TEAM’S PLATFORM IN THE PRESENCE OF;Applicants in personKoima for ProsecutionCourt Assistant – Oigo