[2021] KEHC 7070 (KLR)
The High Court lacks jurisdiction to consider an application for resentencing where the applicant has a pending appeal before the Court of Appeal. Resentencing is not an alternative to the appellate process and is only available to convicts who have exhausted all avenues of appeal or have admitted the offence....
Source-derived case information.
- Citation
- [2021] KEHC 7070 (KLR)
- Parties
- Applicant: James Onzano Opuchi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Criminal Petition 40 of 2018
- Procedural Posture
- Criminal Petition / Application for Resentencing During Pendency of Appeal
- Outcome
- application dismissed for want of jurisdiction
- Legal Topics
- Murder Conviction, Resentencing Jurisdiction, Pending Appeal, Death Sentence Commutation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Onzano Opuchi
Applicant
Republic
Respondent
Procedural Posture
Criminal Petition / Application for Resentencing During Pendency of Appeal
Legal Issues
- 1 Whether the High Court has jurisdiction to entertain an application for resentencing when an appeal is pending before the Court of Appeal.
- 2 Whether resentencing is available as an alternative to the appellate process.
Ratio Decidendi
The High Court lacks jurisdiction to consider an application for resentencing where the applicant has a pending appeal before the Court of Appeal. Resentencing is not an alternative to the appellate process and is only available to convicts who have exhausted all avenues of appeal or have admitted the offence. Entertaining a resentencing application in the presence of a pending appeal would amount to usurping the jurisdiction of the appellate court. Therefore, the application for resentencing was dismissed for want of jurisdiction.
Court Disposition
application dismissed for want of jurisdiction
Orders
- The application for resentencing is dismissed.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KITALE
CRIMINAL PETITION NO. 40 OF 2018
(From original conviction and sentence in Criminal Case No. HCCR 18 of 2003)
JAMES ONZANO OPUCHI.........................................................................APPLICANT
VERSUS
REPUBLIC..................................................................................................RESPONDENT
RULING
The Applicant James Onzano Opuchi, was convicted of Murder contrary to Section 203 as read with Section 204 of the Penal Code. He was sentenced to death. The sentence of death was later commuted to life imprisonment. The Applicant was aggrieved by his conviction and sentence. He filed an appeal in the Court of Appeal. Meanwhile the Applicant has approached this court with an application seeking to be resentenced. There is no evidence placed before the record of this court that the Applicant has withdrawn or abandoned his appeal to the Court of Appeal.
The resentencing option is only available to a convict who has exhausted all the legally available avenues of appeal. A resentencing is not an alternative to an appeal. A resentencing is not a short-cut to the appeal process. An Applicant applying to the court for resentencing pursuant to the Supreme Court decision of Francis Karioko Muruatetu & Others – vs- Republic [2017] eKLR is assumed to have either admitted the offence or that the Appellate process has ender it such that he can no longer challenge his conviction. Where it is established that there is a pending appeal, this court has no jurisdiction to m hear an application for resentencing because to do so, will be usurping the jurisdiction of the Court of Appeal.
In the premises therefore, notwithstanding the Applicant’s mitigation, this court cannot consider the application for resentencing because it lacks jurisdiction. The Application herein was filed during the pendency of an appeal to the Court of Appeal. The said lacks merit and is hereby dismissed.
DATED AT KITALE THIS 10TH DAY OF MAY, 2021
L.KIMARU
JUDGE