[2022] KEHC 10747 (KLR)
The High Court declined to review or re-sentence the applicant because his conviction and sentence had already been affirmed by the Court of Appeal, which is constitutionally superior to the High Court. The court found that it lacked jurisdiction to revisit a sentence that had been conclusively determined on appeal....
Source-derived case information.
- Citation
- [2022] KEHC 10747 (KLR)
- Parties
- Applicant: Amos Changalwa Juma; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 86 of 2019
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Re Sentencing After Conviction and Dismissal of Appeal
- Outcome
- application dismissed
- Judges
- SN Riechi
- Legal Topics
- Murder Sentencing, Death Penalty, Resentencing Jurisdiction, Mitigation Factors, Pre Sentence Remand, Appeal Finality
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Amos Changalwa Juma
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Application for Re Sentencing After Conviction and Dismissal of Appeal
Legal Issues
- 1 Whether the High Court has jurisdiction to re-sentence an applicant whose conviction and sentence have been affirmed by the Court of Appeal.
- 2 Whether the death penalty is unconstitutional and whether judicial discretion in sentencing should be restored in light of the Muruatetu decision.
- 3 Whether the period spent in pre-sentence remand custody should be considered in re-sentencing under Section 333(2) of the Criminal Procedure Code.
Ratio Decidendi
The High Court declined to review or re-sentence the applicant because his conviction and sentence had already been affirmed by the Court of Appeal, which is constitutionally superior to the High Court. The court found that it lacked jurisdiction to revisit a sentence that had been conclusively determined on appeal. While acknowledging the applicant's mitigation, rehabilitative efforts, and the Supreme Court's guidance in Muruatetu, the court held that the proper forum for raising issues such as consideration of pre-sentence custody was during the appeal process. The application for re-sentencing was therefore dismissed, as the High Court could not override the appellate court's final...
Court Disposition
application dismissed
Orders
- The application for re-sentencing is hereby dismissed.
Full Case Text
Judgment text and source record
30 paragraphs
Juma v Republic (Miscellaneous Criminal Application 86 of 2019) [2022] KEHC 10747 (KLR) (10 May 2022) (Ruling)
Neutral citation: [2022] KEHC 10747 (KLR)
Republic of Kenya
In the High Court at Bungoma
Miscellaneous Criminal Application 86 of 2019
SN Riechi, J
May 10, 2022
Between
Amos Changalwa Juma
Petitioner
and
Republic
Respondent
Ruling
1The applicant herein was charged in Bungoma High Court Criminal Case No. 22 of 2001 with the offence of Murder contrary to Section 203 as read with Section 204 of the Penal Code. Particulars were that on 16/12/2000 at Sanandiki Village Chwele Location in Bungoma District within Western Province murdered Elijah Nangata Kiliswa.
2After full trial, the applicant was convicted and sentenced to suffer death. Dissatisfied, he appealed to the Court of Appeal sitting in Eldoret which dismissed the appeal thus the instant application in which the applicant seeks a re-hearing on the sentence.
3This court ordered the application be disposed of by way of written submissions. Both parties complied. The applicant relies on the decision in Francis Karioko Muruatetu & another Vs Republic (2017)eKLR for the proposition that death penalty is unconstitutional as it deprives judicial officers of their discretion when it comes to sentencing.
4He further relies on the authorities in William Okungu Kittiny vs Republic (2018)eKLR, Mustafa Abdirhman Ali Vs republic (2019)eKLR,Juma Iddi Mustapha Vs Republic (2019) eKLR and Lawrence Nkonge Mwiandhi Vs Republic (2019)eKLR.
5On the provisions of Section 333(2) of the Criminal Procedure Code, he submits that his sentence ought to run from the time of arrest provided that the accused has all along been in custody. He submits that he was arrested on 16/12/2000 and held in remand until 2005 when he was convicted and sentenced. In support, he cites the cases of Elizabeth Mwiyathi Syego V Republic (2019) eKLR and Ahamad Abolfathi Mohamed & another vs Republic (2018)eKLR.
6On the rehabilitative steps he has undertaken in custody, he submits that he has attained National Trade Test Certificate in carpentry and joinery grades 1, 2 and 3, Certificate in Biblical Studies, Diploma in Master Life Fellowship as well as a recommendation letter from the Officer-in Charge, Naivasha Main Prison.
7On his age, he submits that he was convicted when he was 23 years, he is a first offender and he is remorseful.
8The respondent in opposing the application for re-sentencing asked court to consider the facts of the case, the fact that life was lost as result of the applicant’s actions, the position of the deceased’s family and that death penalty is still a legal sentence in Kenya.
9Since the pronouncement of the Supreme Court in Francis Karioko Muruatetu & another Vs Republic (2017) eKLR, many convicts who had been sentenced to suffer death applied to the trial court for a review of their sentences. This is based on the fact that there is no pending appeal against either the conviction or sentence or both. The applicant in this case unsuccessfully lodged his appeal at the Court of Appeal. It is also pegged on the consideration that there is no dispute over the propriety of the sentence or conviction. A re-sentence hearing is limited to a consideration of the sentence only.
10Some of the mitigating factors raised by the applicant are that; he is a first time offender, he is a family man whose life and that of his family has been affected by the imprisonment and that he has taken full advantage of rehabilitative services offered in prison. This is commendable achievement.
11It is not lost to this court that life was lost as a result of his actions which calls for a custodial sentence in order to rehabilitate and deter such criminal conduct. It is also a fact that struck the deceased with an axe and must have occasioned excruciating pain since the deceased succumbed to his injuries approximately four months later having been taken to various hospitals.
12On the issue of when the sentence should start running, the court is alive to the proviso to Section 333(2) of the Criminal Procedure Code which permits this court to consider the pre-sentence remand. The applicant was arrested on 18/12/2000, convicted and sentenced on 15/12/2005. He preferred an appeal thereafter which was dismissed. It is the view of this court that had the applicant wished the period spent in custody to be considered, he should have raised the issue during the appeal as he also appealed against conviction and sentence.
13The hierarchy of courts is a constitutional creature, the Court of Appeal ranks high to the High Court and the decisions emanating therefrom are binding to this court. In this case, what the applicant seeks or seems to be seeking is a review of a sentence which has been affirmed by the appellate court.
14As such, having taken into account the mitigation tendered in this court, the respective written submissions and the authorities cited by the parties, I decline to review the sentence for the reasons given in the preceding paragraphs with the resultant order being that the application is hereby dismissed.
15Orders accordingly.
DATED AT BUNGOMA THIS 10TH DAY OF MAY, 2022S. N. RIECHIJUDGE