[2020] KEHC 7603 (KLR)
The High Court held that it could not proceed to determine the petition for re-sentencing because there was a pending appeal at the Court of Appeal regarding the conviction and sentence. The court reasoned that if the appeal were to succeed, the re-sentencing process would be rendered unnecessary, and even if the...
Source-derived case information.
- Citation
- [2020] KEHC 7603 (KLR)
- Parties
- Applicant: Hezron Okoth Agai; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Petition 42 of 2019
- Procedural Posture
- Miscellaneous Application / Re Sentencing Petition
- Outcome
- petition struck out as premature
- Legal Topics
- Robbery With Violence, Resentencing, Pending Appeal, Death Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Hezron Okoth Agai
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Application / Re Sentencing Petition
Legal Issues
- 1 Whether the High Court can entertain a re-sentencing petition when an appeal is pending before the Court of Appeal.
- 2 Whether the petition for re-sentencing is premature in light of the undetermined appeal.
Ratio Decidendi
The High Court held that it could not proceed to determine the petition for re-sentencing because there was a pending appeal at the Court of Appeal regarding the conviction and sentence. The court reasoned that if the appeal were to succeed, the re-sentencing process would be rendered unnecessary, and even if the appeal failed, the appellate court could itself vary the sentence in light of the Supreme Court's guidance in the Muruatetu case. Therefore, the petition for re-sentencing was found to be premature and was struck out without determination on the merits, preserving the petitioner's right to bring a fresh petition should the appeal be resolved unfavorably to him.
Court Disposition
petition struck out as premature
Orders
- The petition for re-sentencing is struck out.
- The petitioner may bring a fresh petition if the appeal at the Court of Appeal is determined unfavorably.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KISUMU
MISC. CR. PET. NO. 42 OF 2019
HEZBON OKOTH AGAI.....................................................PETITIONER
-VERSUS-
REPUBLIC..........................................................................RESPONDENT
NOTES ON RE-SENTENCING
The Petitioner, HEZRON OKOTH AGAI, was convicted for the offence of Robbery with ViolenceContrary to Section 296 (2)of the Penal Code. He was then sentenced to suffer death as by law prescribed.
1. His appeal to the High Court was dismissed.
2. According to the Petitioner, he lodged an appeal at the Court of Appeal, but the said appeal has never been determined.
3. Although the Petitioner told this court that he lodged his appeal at the Court of Appeal in the year 2006, I find that that cannot have been possible, considering that the judgment by the High Court was delivered on 7th October 2008.
4. In the court file, I traced a Notice of Appeal dated 29th October 2008.
5. The reason I have set out these particulars is to make the point that there was still an appeal which was not yet determined.
6. In the circumstances, it is possible that the pending appeal could be determined at a future date.
7. This court is unable to foretell whether or not the Petitioner’s pending appeal would be successful.
8. If the said appeal were to succeed on the issue of conviction, the whole process currently being urged before this court would have been an exercise in futility.
9. Secondly, even if the appeal against conviction were to be upheld, there is a possibility that the Court of Appeal, (deriving guidance from the Supreme Court’s Judgment in “the Muruatetu Case”), could vary the sentence.
10. Accordingly, I hold the considered view that, because the Petitioner still has a pending appeal at the Court of Appeal, the currently Petition for re-sentencing was premature.
11. In the circumstances, I reject the Petition: It is struck out.
12. For the avoidance of any doubt, the Petition has not yet been determined on merit. Therefore, should the appeal at the Court of Appeal be determined in whichever manner that was not favourable to the Petitioner, it may still be open to the Petitioner to bring a fresh petition.
DATED, SIGNED and DELIVERED at KISUMU This18thday of February2020
FRED A. OCHIENG
JUDGE