[2023] KEHC 2998 (KLR)
The High Court lacks jurisdiction to review a sentence where an appeal is pending before the Court of Appeal, as the matter is sub judice and falls within the appellate court's purview. Furthermore, Section 333(2) of the Criminal Procedure Code, which allows for consideration of time spent in custody, is...
Source-derived case information.
- Citation
- [2023] KEHC 2998 (KLR)
- Parties
- Applicant: Bari David Karanja; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Criminal Petition E012 of 2022
- Procedural Posture
- Criminal Petition / Sentence Review Application; Ruling
- Outcome
- petition dismissed
- Judges
- RE Aburili
- Legal Topics
- Sentence Review, Mandatory Death Sentence, Right to Mitigate, Appeal Pending, Jurisdiction of High Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Bari David Karanja
Applicant
Republic
Respondent
Procedural Posture
Criminal Petition / Sentence Review Application; Ruling
Legal Issues
- 1 Whether the High Court has jurisdiction to review a sentence where an appeal is pending before the Court of Appeal.
- 2 Whether Section 333(2) of the Criminal Procedure Code applies to a convict serving a life sentence after commutation from a mandatory death sentence.
- 3 Whether the petitioner's constitutional rights were violated by the imposition of a mandatory death sentence and lack of mitigation.
Ratio Decidendi
The High Court lacks jurisdiction to review a sentence where an appeal is pending before the Court of Appeal, as the matter is sub judice and falls within the appellate court's purview. Furthermore, Section 333(2) of the Criminal Procedure Code, which allows for consideration of time spent in custody, is inapplicable to convicts serving life sentences or commuted death sentences, as it only applies to term sentences. The petitioner's arguments regarding constitutional violations and mitigation cannot be addressed by the High Court at this stage due to the pending appeal. Consequently, the petition is without merit and must be dismissed.
Court Disposition
petition dismissed
Orders
- The petition is dismissed.
- Petitioner to be notified in prison by signal.
Full Case Text
Judgment text and source record
25 paragraphs
Karanja v Republic (Criminal Petition E012 of 2022) [2023] KEHC 2998 (KLR) (24 March 2023) (Ruling)
Neutral citation: [2023] KEHC 2998 (KLR)
Republic of Kenya
In the High Court at Kisumu
Criminal Petition E012 of 2022
RE Aburili, J
March 24, 2023
Between
Bari David Karanja
Petitioner
and
Republic
Respondent
Ruling
1. The Petitioner/Convict herein Bari David Karanja by his Petition filed on July 13, 2022 seeks from this court orders of Sentence Review in respect of HCCR No 38 of 2009 at Kisumu High Court and the grounds in support are that the mandatory death sentence imposed on March 24, 2016 is arbitrary and disproportionate; that the Petitioner’s rights under Articles 27(1) (2) and 50(2) (p) of the Constitution was violated.
2. The Petition is supported by the affidavit sworn by the Petitioner deposing that the death sentence imposed was commuted to life imprisonment and that his appeal to the court of Appeal has taken a long time hence he had to file this petition.
3. That he has been in prison custody for thirteen (13) years, is reformed, rehabilitated and remorseful. That his rights were violated and he was not given a chance to mitigate. He has annexed warrant of committal to prison dated March 24, 2016.
4. The Petitioner filed his submissions which commence with a plea that this court considers the time spent in custody as stipulated in Section 333(2) of theCriminal Procedure Code that he was arrested when he was thirty (30) years old, he is a first offender, he was not on bond, ready to reconcile with the parties concerned and he has maintained discipline in prison.
5. That he has been of good character and trained and is a trustee in prison. He also sat for KCSE in prison at Naivasha and attained a D+ after sitting for his KCPE and attaining high grades of 1 A-, 3 A’s and 1 B. He has filed other testimonials.
6. I have considered the Petition. The Convict has an appeal pending before the Court of Appeal. This court has no jurisdiction to review his sentence as imposed by the court of concurrent jurisdiction. This court can also not review sentence which is subject of an appeal.
7. Section 333(2) of the Criminal Procedure Code is also not applicable to the Petitioner as he is not serving a term sentence.
8. I find the Petition not merited. It is hereby dismissed.
9. Petitioner to be notified in prison by signal.
10. File closed.
Dated, Signed and Delivered at Kisumu this 24thDay of March, 2023R. E. ABURILIJUDGEPage 2 of 2